UpGuard EULA

TERMS OF USE
UPGUARD SOFTWARE

UPGUARD LICENSES IT’S “ON-PREMISE” SOFTWARE ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS LICENSE BY EXECUTING OR OTHERWISE ACCEPTING A PURCHASE ORDER FOR THE USE OF THE UPGUARD SOFTWARE OR BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE USING ALL OR ANY PORTION OF THE UPGUARD SOFTWARE: (I) YOU ACCEPT THIS LICENSE ON BEHALF OF THE ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT AND ACKNOWLEDGE THAT SUCH ENTITY IS LEGALLY BOUND BY THIS LICENSE (AND YOU AGREE TO ACT IN A MANNER CONSISTENT WITH THIS LICENSE) OR, IF THERE IS NO SUCH ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT, YOU ACCEPT THIS LICENSE ON BEHALF OF YOURSELF AS AN INDIVIDUAL AND ACKNOWLEDGE THAT YOU ARE LEGALLY BOUND BY THIS LICENSE, AND (II) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY (IF ANY) OR YOURSELF. YOU MAY NOT ACCEPT THIS LICENSE ON BEHALF OF ANOTHER ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AGENT OF SUCH OTHER ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF SUCH OTHER ENTITY.

The words “Company", “Customer”, “Agreement”, “Software” and other capitalized terms used in this License are defined terms. The definitions can be found in the “Definitions” section below (if the terms are not defined in the main body of the Agreement).

1. SOFTWARE LICENSE AND MAINTENNANCE SERVICES

1.1.Grant of License. Subject to Customer’s compliance with the terms and conditions of this License (including, without limitation, payment of the applicable fees in accordance with Section 5.1), Company grants to Customer a nonexclusive, non-assignable, limited license to use the Software specified in an accepted Purchase Order solely for Customer’s internal business purposes in the Licensed Configuration and limited to the number of Nodes set out in the Purchase Order. Customer acknowledges and agrees that the license rights granted by Company hereunder permit use of the Software solely by Customer’s Authorized Users for Customer’s internal business purposes.

1.2. License Restrictions. Except as expressly authorized in this License, Customer will not: (a) copy or modify the Software; (b) distribute, transfer, sublicense, lease, lend or rent the Software to any third party; or (c) use or deploy the Software on any Node in excess of the Nodes for which the Customer has paid the relevant fee, or (d) alter or remove any proprietary notices in the Software, (e) use the Software for any unlawful purpose, (f) disclose to any third party or publish the results of any testing on the Software, or (g) make the functionality of the Software available to multiple users through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. Customer acknowledges and agrees that portions of the Software constitute or contain trade secrets of Company and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Software, or permit or authorize a third party to do so, except to the extent such restrictions are prohibited by applicable law.

1.3. Third Party Software. The Customer acknowledges that the Software contains the Specified Third Party Software (which may include open source software) and that the Customer’s use of the Specified Third Party Software will be subject to separate license terms with the relevant licensors.

1.4. Limited Rights. Customer’s rights in the Software will be limited to those expressly granted in this License. Company reserves all rights and licenses in and to the Software not expressly granted to Customer under this License.

1.5. Verification and Audit. At Company’s written request, Customer will furnish Company with a certification signed by an officer of Customer verifying that the Software is being used in accordance with the terms of this License and the applicable Purchase Orders. For the Term of this License and a period of two (2) years thereafter, Customer will maintain complete and accurate books and records regarding Customer’s use of the Software and permit Company to audit such books and records upon reasonable request.

1.6. Professional Services. Subject to Customer’s payment of the Professional Services fees detailed in the Purchase Order, company will provide Customer with Professional Services in accordance with the terms of this License.

1.7. Maintenance Services. Subject to Customer’s payment of the Maintenance Services fees detailed in the Purchase Order, company will provide Customer with Maintenance in accordance with the terms of this License.

2.CUSTOMER OBLIGATIONS

2.1. Cooperation and Assistance. As a condition to Company’s obligations hereunder, Customer shall at all times: (a) provide Company with good faith cooperation and assistance and make available such information, facilities, personnel and equipment as may be reasonably required by Company in order to provide the Software and Services; (b) provide such personnel assistance and other Customer personnel, as may be reasonably requested by Company from time to time; and (c) carry out in a timely manner all other Customer responsibilities set forth in this License.

2.2. Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this License. Customer shall promptly notify Company of any suspected or alleged violation of the terms and conditions of this License and shall cooperate with Company with respect to: (a) investigation by Company of any suspected or alleged violation of this License and (b) any action by Company to enforce the terms and conditions of this License. Company may suspend or terminate any Authorized User’s access to the Software upon notice to Customer in the event that Company reasonably determines that such Authorized User has violated the terms and conditions of this License or any other agreement between Company and such Authorized User pursuant to which such Authorized User is permitted to access and use the Software. Customer will at all times be responsible for all actions taken by or on behalf of an Authorized User, whether such action was authorized by an Authorized User. Customer shall be liable for any violation of the terms and conditions of this License by any Authorized User.

2.3. Customer Data Representations. Customer represents and warrants to Company that: (i) it has all rights, power and authority that are necessary for Customer’s collection, use and processing of the Customer Data as contemplated by this License; (ii) Customer’s use and provision of Customer Data to Company pursuant to this License will not breach any agreement between Customer and any third party or violate any applicable local, state or federal laws, regulations, orders or rules, and (iii) it will not transfer to Company any personal identifiable information or any protected health information as part of its use of the Services.

2.4. Limitations. Company will not be responsible for correcting any errors not reproducible by Company on the unmodified Software or errors caused by: (a) Customer’s failure to implement all updates and upgrades provided by Company under this License; (b) changes by Customer to the operating system or environment which adversely affect the Software; (c) use of the Software in a manner for which it was not designed; (d) accident, negligence, or misuse of the Software; or (e) operation of a version of the Software older than the most current version of the Software or the immediately preceding Version of the Software, but not any earlier Versions.

3. ORDERS, ACCEPTANCE AND DELIVERY.

3.1. Ordering. Customer may submit Purchase Orders to Company for the purchase of Software licenses and Services. No Purchase Order will be deemed accepted by Company unless and until Company accepts such Purchase Order in writing. Any terms and conditions contained in any Purchase Order that are inconsistent with or in addition to the terms and conditions of this License will be deemed stricken from such Purchase Order, unless expressly agreed to in writing by Company.

3.2. Delivery. Company will deliver the Software to Customer by permitting Customer to electronically download the Software from a location specified by Company.

4.FEES; EXPENSES; TAXES

4.1. Fees and Expenses. Customer will pay Company the fees for the Software and Services specified in an accepted Purchase Order. If specified in an accepted Purchase Order, Customer will also reimburse Company for any reasonable and customary out-of-pocket travel and lodging expenses incurred by Company in connection with performing any Services hereunder. At Customer’s request, Company will furnish Customer with receipts and other documentation for all such expenses.

4.2. Payment Terms. Unless otherwise specified in a Purchase Order, all fees and expenses will be due and payable within thirty (30) days after the date of Company’s invoice therefor. Customer will pay all invoices in full, without reduction or setoff of any kind. Any payment due under this License not received by Company within ten (10) days of the due date will incur interest at a rate of 1.5% per month, or the maximum rate allowed by law, whichever is lower.

4.3. Taxes. All fees payable under this License are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this License or Customer’s receipt or use of the Software and Maintenance Services, except for taxes based on Company’s net income. In the event that Company is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Company. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Company with written documentation of all such tax payments, including receipts.

5. CONFIDENTIALITY

5.1. Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Customer Data is not considered to be Confidential Information of Customer (provided however that the user names and log in credentials of Authorized Users is Customer Confidential Information), the Software and the Maintenance Services are Company’s Confidential Information, and the terms of this License constitute Confidential Information of both parties.

5.2. Exclusions. The obligations and restrictions set forth in Section 5.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this License by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.

5.3. Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this License and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this License; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 5.3 will remain in effect during the term of this License and for a period of three (3) years after the expiration or termination of this License.

5.4. Permitted Disclosures. The provisions of this Section 5 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.

6. OWNERSHIP

6.1. Software and Services. As between Company and Customer, the Software and the Maintenance Services, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Company or its licensors.

6.2. Customer Data. Company acknowledges that, as between Customer and Company, Customer owns all worldwide right, title and interest in and to all Customer Data and Company will not obtain any ownership rights in such data. Customer hereby grants to Company a royalty free, non-exclusive, irrevocable license to use the Customer Data for its business purposes.

6.3. Suggestions. Customer hereby grants to Company a royalty free, non-exclusive, irrevocable license to use any suggestions or feedback that the Customer has provided to the Company relating to the Software for its business purposes

7.TERM AND TERMINATION

7.1. Term. This License shall commence on the Effective Date and shall continue for the period identified as the “Initial Term” in the Purchase Order (the “Initial Term”), unless terminated earlier as provided in this License. This License shall automatically renew for subsequent one-year periods, unless either party notifies the other in writing of its intent not to renew at least ninety (90) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively the “Term”.

7.2. Termination for Cause. Either party may terminate this License upon written notice if the other party materially breaches this License and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any breach with respect to payment shall be five (5) business days.

7.3. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this License, (i) Customer’s and Authorized Users’ license to the Software shall immediately terminate, (ii) Customer and its Authorized Users shall immediately cease all use of the Software, (ii) each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party, provided, however, that Company shall be entitled to retain a copy of the Customer Data for its business purposes and (iv) Company shall not be obliged to provide any Maintenance Services. Upon expiration or termination of this License, Company shall cease use of the Customer Marks (as defined in Section 2.2); provided, however, that (a) Company shall have a reasonable time to remove the Customer Marks from promotional materials, (b) Company shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) Company shall not be required to remove any such printed materials from circulation.

8.WARRANTY

8.1. Warranties by both Parties. Each party warrants that it has full power and authority to enter into and perform its obligations under this License, and the person entering into this License on such party’s behalf has been duly authorized and empowered to enter into this License.

8.2. Services Warranty. Company warrants to Customer that the Maintenance Services and the Professional Services will be performed (i) in accordance with Exhibit A and the terms of any Purchase Order and (ii) in a good and workmanlike manner. Company’s sole obligation under the limited warranty set forth in this Section 8.2 is to use commercially reasonable efforts to correct any Services that do not comply with the warranties set forth in this Section; provided that Customer gives Company written notice of the noncompliance within such sixty (60) day period. If, after the expenditure of commercially reasonable efforts, Company is unable to correct the noncompliance, Company may choose to refund an equitable portion of the relevant fee paid by Customer for such deliverables or Services, whereupon the same will be deleted form the deliverables or Services and no longer considered a part thereof.

8.3. Software Warranty. Company warrants to the Customer that the Software will perform under normal use in all material respects with the Documentation for a period of sixty (60) days from the initial access of the Software by Customer. Provided that Customer gives Company written notice of any noncompliance within such sixty (60) day period, Company’s sole obligation under the limited warranty set forth in this Section 8.3 is to use its reasonable efforts to correct or replace any non-conforming Software or, at Company’s sole discretion, to terminate this License in which case the Customer may continue to use the Software for a period of ninety (90) days provided that Customer continues to pay all Fees in relation thereto. Company shall be entitled to deactivate the Services with regard to Customer immediately upon Customer no longer being entitled to receive the Services pursuant to this License.

8.4. Exclusions. The warranties under Section 8.2 and 8.3 do not apply to any: (a) use of the deliverables, Services or Software not in accordance with this License, including Customer operation or use of the Services, deliverables or Software other than in accordance with applicable Documentation or design or on hardware not recommended, supplied or approved by Company; (b) modification, damage, misuse or other action of Customer or any third party; or (c) combination of the deliverables, Services or Software with any goods, services or other items provided by Customer or any third party.

8.5. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2 and 8.3, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS LICENSE OR THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2 and 8.3, COMPANY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS LICENSE.

9. INDEMNIFICATION

9.1. Indemnification by Company. Company shall defend any suit or action brought against Customer to the extent that it is based upon a third party claim that the Software, as provided by Company to Customer pursuant to this License, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. Company’s obligations under this Section 9.1 are contingent upon: (a) Customer providing Company with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Company in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim.

9.2. Enjoinment. If Customer’s use of the Software is, or in Company’s opinion is likely to be, enjoined due to the type of claim specified in Section 9.1, then Company may at its sole option and expense: (i) replace or modify the Software to make it non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Software under the terms of this License; or (iii) if Company is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate Customer’s rights and Company’s obligation under this License with respect to such Software and refund to Customer a pro-rata portion of the fees paid by the Customer relating to the period which Customer would have had access to the Software.

9.3. Exclusions. Notwithstanding the terms of Section 9.1, Company will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) use of the Software not in accordance with this License, including Customer operation or use of the Software other than in accordance with applicable Documentation; (b) modification, damage, misuse or other action of Customer or any third party; or (c) combination of the Software with any goods, services or other items provided by Customer or any third party.

9.4. Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.

9.5. Indemnification by Customer. Customer shall defend Company, its officers, directors and employees (collectively, “Company Indemnitees”), from and against any action or suit brought against a Company Indemnitee by a third party in connection with Customer’s or an Authorized User’s use of the Software (other than any claim for which Company is responsible under Section 9.1 including but not limited to a claim that the Customer Data or Customer’s use of the Software infringe or misappropriate any Intellectual Property Rights of a third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Company. Customer’s obligations under this Section 9.5 are contingent upon: (a) Company providing Customer with prompt written notice of such claim; (b) Company providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

10. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 1.2 OR SECTION 5, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS LICENSE, EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 1.2 OR SECTION 5, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS LICENSE OR CUSTOMER’S ACCESS TO AND USE OF THE SOFTWARE AND THE SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS LICENSE IN THE THREE (3) MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

11. ACKNOWLEDGEMENT. The parties acknowledge that the limitations and exclusions contained in Sections 9 and 10 and elsewhere in this License have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this License, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies will be severable and independent of any other provisions and will be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies will remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

12. GENERAL

12.1. Survival. The rights and obligations of Company and Customer contained in Sections 3 (Fees, Expenses and Taxes), 4 (Ownership), 5 (Confidentiality), 7.3 (Rights and Obligations Upon Expiration or Termination), 9 (Indemnification), 10 (Limitation of Liability), 11 (Acknowledgement), and 12 (General) shall survive any expiration or termination of this License.

12.2. Governing Law. This License and all matters arising out of or relating to this License shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this License shall be brought exclusively in the state or federal courts located in the Northern District of California in San Francisco County. Company and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

12.3. Waiver. The waiver by either party of any default or breach of this License shall not constitute a waiver of any other or subsequent default or breach.

12.4. Notices. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses set forth in this License or delivered in person. The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

12.5. Severability. In the event any provision of this License is held to be invalid or unenforceable, the remaining provisions of this License shall remain in full force and effect.

12.6. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, service provider defaults and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

12.7. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

12.8. Relationship Between the Parties. Nothing in this License shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

12.9. Assignment. Customer may not assign or transfer this License, in whole or in part, without Company’s prior written consent. Company may freely assign or transfer this License, in whole or in part, by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this License shall inure to the benefit of the successors and permitted assigns of the parties.

12.10. Entire Agreement. This License constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this License. This License may not be modified or amended except in a writing signed by a duly authorized representative of each party.

12.11. Non-Exclusive Remedies. Except as set forth in Sections 8.2, 8.3 and 9.4, the exercise by either party of any remedy under this License will be without prejudice to its other remedies under this License or otherwise.

12.12. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this License may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

12.13. No Third-Party Beneficiaries. This License is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this License may enforce it.

12.14. Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Software, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.

DEFINITIONS

“Authorized User” means a Customer employee, Customer contractor (who provides services to Customer such that access to the Services is required) or Customer’s end users.
“Company” means UPGUARD Inc., a California corporation located at 548 Market Street, San Francisco, CA 94194, USA.
“Customer” means the company, other legal entity or individual that licenses or otherwise uses the Software. For the avoidance of doubt, “Customer” refers only to a single, specifically identified legal entity or individual, and does not include any subsidiary or affiliate of any such legal entity or individual or any other related person.
“Customer Data” means, license usage, node counts, data, information, and content about the health of the Software environment and usage statistics provided by Customer and/or Authorized Users to the Company relating to the Services.
“Documentation” means the standard user documentation for the Software that Company makes generally available to its customers.
“Effective Date” means the date this Agreement was entered into.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“License” This Software License Agreement and any Schedule, Exhibit, Purchase Order or other document incorporated by reference.
“Licensed Configuration” means the terms and conditions that define the scope of Customer’s permitted use of the Software, as specified in the applicable Purchase Order.
“Maintenance Services” means the standard maintenance and support services for the Software that Company provides to its customers, as described in Exhibit A.
“Nodes” means each physical or virtual individual component of the Customer’s system that is installed, configured, updated or managed through the use of the Software.
“Purchase Order” means a purchase order agreed between the parties with regard to the provision of software to Customer.
“Professional Services” means the professional services for the Software that Company provides to its customers, as described in the relevant Purchase Order.
“Services” means the Professional Services and/or the Maintenance Services, as applicable.
“Specified Third Party Software” means the software set out in Exhibit B.
“Software” means the proprietary Company software products, in executable code form, and related Documentation, as specified in a Purchase Order. Software also includes any Error Corrections and Updates (the foregoing terms defined in Exhibit A) thereto provided by Company as part of Maintenance Services.

LIST OF EXHIBITS

EXHIBIT A - Maintenance Services
EXHIBIT B - Specified Third Party Software

EXHIBIT A

MAINTENANCE SERVICES

This Exhibit A, which is a schedule to the License between Company and the Customer, sets forth the terms and conditions under which Company will provide Maintenance Services to Customer. Capitalized terms used in this Exhibit A that are not defined herein have the meaning as set forth in the License. Company reserves the right to modify its Maintenance Services terms and conditions, as set forth in this Exhibit A upon no less than thirty (30) days written notice to Customer. However, any modification to Company’s Maintenance Services terms and conditions will become effective only at the beginning as of the next Maintenance Services Term (defined below) and will not affect the terms and conditions of the Maintenance Services Term then in effect as of the date of Company’s notice.

I. MAINTENANCE

Company will provide Customer with error corrections, bug fixes, patches and workarounds (collectively, “Error Corrections”) and updates, modifications and other enhancements (collectively, “Updates”) for the Software as generally made available by Company to its other customers at no additional cost Company does not promise that it will provide any, or a certain minimum number of, Updates during any particular Maintenance Services Term.

Company reserves the right to charge additional fees for Maintenance Services with respect to any version of the Software other than the currently supported release(s) of the Software.

II. HELP DESK SUPPORT

Company will provide help desk support via telephone and email during the coverage hours specified below. Help desk support consists of consultation in English with a qualified technician in regard to the installation and proper operation of Software, the provision of Error Corrections for reported operating problems in Software, and remedial software maintenance as required to restore the Software to operability.

III. SEVERITY LEVELS

Security Level Expression Description
1 Blocker In this class, the errors lead to a complete loss of the productive system. It is no longer possible to carry out tasks which should be carried out through the use of the software.
2 Critical The production is significantly impaired or Company’s performance is greatly reduced.
3 Major The full use of the program functions is altered but alternative possibilities are available.
4 Minor There are only slight or “cosmetic” problems but the Software’s performance is not affected.

IV. SUPPORT LEVELS & RESPONSE TIMES

Company provides support services in accordance with the two levels (Standard and Enterprise) described below, depending on the level of Maintenance Services purchased. The initial response times listed below are within the hours of operation as noted for the level of Maintenance Services purchased. Customer acknowledges that acceptance of a defect report by Company is conditional upon Customer having provided Company with a complete description of the defect, incident or error (detailed textual description, sample data, scenario, call-stack, logs, dumps) and Company will have no obligation to provide Maintenance Services with respect to Software incidents or errors reported by Customer that Company is unable to reproduce based on information that Customer provides to Company.

Standard:
    Maintenance Services include the following:
  • Access to Company Help Desk telephone number and e-mail.
  • Help Desk hours of operation 5 days a week 8am PST to 6pm CST (excluding holidays).
  • Remote diagnosis and resolution with Company Support Engineer.
  • Response Times:
Security Level Response Time
3 Initial response 24 hours from Company’s acceptance of a incident ticket

Enterprise:

    Maintenance Services include the following:
  • Access to Company Help Desk telephone number, chat and e-mail.
  • Help Desk hours of operation 7 days a week 24 hours per day 365 days per year.
  • Remote diagnosis and resolution with Company Success Engineer.
  • Automated case escalations for Severity 1 incidents.
  • Monthly Incident reporting (detailed number of Incidents and resolution).
  • Response Times:
1 Initial response 4 hour from Company’s acceptance of a incident report
2 Initial response 8 hours from Company’s acceptance of a incident report
3 Initial response 24 hours from Company’s acceptance of a incident report
4 Initial response 3 business day from Company’s acceptance of a incident report

V. CUSTOMER RESPONSIBITIES

To receive Maintenance Services, Customer must at all times fulfill the following responsibilities:


(a) Training. Customer must ensure that Customer personnel are trained on use of the Software and the application programs, operating systems and hardware on or with which the Software is used. It is especially important that persons using the help desk have sufficient training on the applicable Software to provide Company with reasonable assistance in diagnosing and addressing errors.

(b) Systems. Customer must provide and maintain in good operating condition the systems (including computers, operating systems and other facilities) specified by Company as being required for operation of the Software.

(c) Instructions. Customer must follow Company’s documented processes and procedures for use and administration of the Software.

(d) Cooperation. Customer must allow Company reasonable access (at no charge) to Customer’s systems to perform diagnostics and maintenance, including remote access. Customer must also execute reasonable diagnostic routines in accordance with the instructions of Company’s help desk personnel and report the results of such tests.

(e) Files. Customer must maintain adequate, verified backup copies of all Software and related software and data, including operating system, application and data files, and make these available to Company on request.

(f) License. Customer must purchase and maintain in effect a valid license for each copy of the Software that Customer uses.

VI. EXCLUSIONS TO MAINTENANCE SERVICES

Company will have no obligation of any kind to provide Maintenance Services of any kind for problems in the operation or performance of the Software to the extent caused by any of the following (each, a “Customer-generated Error”):


(a) non-Company software or hardware products (including without limitation, the operating systems on which the Software operate) or use of the Software in conjunction therewith;

(b) modifications to the Software made by any party without Company’s express written authorization;

(c) Customer’s use of the Software other than as authorized in this Agreement or as provided in the Documentation; or

(d) Customer’s use of Software other than the currently supported release(s) of the Software or any Error Corrections or Updates thereto provided by Company. If Company determines that it is necessary to perform Maintenance Services for a problem in the operation or performance of the Software that is caused by a Customer-Generated Error, then Company will notify Customer thereof as soon as Company is aware of such Customer-Generated Error and, provided Company has obtained Customer’s prior approval, Company will have the right to invoice Customer at Company’s then-current published time and materials rates for all Maintenance Services performed by Company to resolve such Customer-Generated Error.

VII. TERM AND TERMINATION OF MAINTENANCE SERVICES


(a) Term. The term of this Exhibit A will commence on the date specified in the Purchase Order and, unless terminated earlier in accordance with the terms of this Agreement (including the terms and conditions of this Exhibit A), will remain in effect for the period specified in the applicable Purchase Order (the “Maintenance Services Term”).

(b) Termination of Maintenance Services. Customer may terminate a Maintenance Services Term, at any time, upon ninety (90) days’ notice to Company. Termination of a Maintenance Services Term by Customer does not terminate this Agreement. Upon any termination of this Agreement, all Maintenance Services Terms will automatically terminate. Unless otherwise agreed to in writing by Company, in the event of termination of a Maintenance Services Term by Customer, Customer will not be entitled to a refund of any pre-paid Maintenance Services fees.

(c) Resumption of Maintenance Services Term. If Customer terminates a Maintenance Services Term prior to the end of its then-current term, Customer may, at its option, resume the terminated Maintenance Services Term by paying a re-enrollment fee in addition to the then-current Maintenance Services fees. The re-enrollment fee will be equal to the total annual Maintenance Services fees applicable at the time Customer resumes the Maintenance Services.

VIII. MAINTENANCE SERVICES FEES

For the Initial Maintenance Services Term, Customer will pay Company the Maintenance Services fee set forth in the Purchase Order. Unless otherwise expressly set forth in a Purchase Order, the Maintenance Services fee payable for each subsequent Maintenance Services Term will automatically increase by four percent (4%)of the Maintenance Services fees applicable for the prior Maintenance Services Term. All Maintenance Services fees are payable in full prior to the commencement of each Maintenance Services Term.

EXHIBIT B

SPECIFIED THIRD PARTY SOFTWARE

Some components of the Software may be subject instead to the terms of an “open source” license (the “Open Source Components”). UPGUARD may provide third party software, including Open Source Components, to Customer as part of Customer's download of the Software. Third party software is subject to the terms of their accompanying licenses are viewable here.

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