This End User License Agreement (“the “Agreement”) is an agreement between the entity receiving the accompanying Software (defined below) (“Licensee”) and Portworx, Inc.
BY INSTALLING, COPYING OR USING THE SOFTWARE, THE LICENSEE CONSENTS TO AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE, AND IMMEDIATELY DELETE THE SOFTWARE.
1.1 “Documentation” means the standard end-user technical documentation and specifications that Portworx provides with the Software.
1.2 “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
1.3 “Software” means Portworx’s PX-Developer and PX-Enterprise software, and any Update thereto if and when such Updates are made available by Portworx, and excludes any Third Party Software and Open Source Software (each as defined in Section 2.4).
1.4 “Update” means an update of the Software that Portworx makes generally available at no additional charge to customers that receive Support, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases. Updates include only the Software licensed by Licensee hereunder, and do not include any new options, new or future product, or any upgrade in features, functionality or performance of the Software that Portworx licenses separately from the Software, or offers only for an additional fee.
2. LICENSE GRANT.
2.1 Software License. Subject to the terms and conditions of this Agreement, Portworx grants Licensee a nontransferable, nonexclusive license (without the right to sublicense) during the term set forth in the purchase agreement between the Licensee and Portworx, to use the Software, in executable object code format only, solely in accordance with the Documentation.
2.2 Evaluation License. This section shall apply only when Licensee licenses the Software for an initial evaluation period. The license granted herein is valid only for the evaluation period designated by Portworx and may only be used for evaluation purposes. Under no circumstances will an evaluation license be construed to mean that Licensee is authorized to distribute the Software to any third party for any reason whatsoever. In the event that the Licensee wishes to enter into a standard license with Portworx for non-evaluation purposes, Licensee shall enter into a purchase agreement with Portworx and this Agreement shall continue in full force and effect. In the event that Licensee determines not to enter into a licensing transaction with Portworx at the end of such evaluation period, then Licensee’s rights under this Agreement shall terminate and Licensee shall promptly delete all Portworx evaluation Software.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6 WARRANTIES, SOFTWARE LICENSED FOR EVALUATION UNDER THIS SECTION IS PROVIDED TO LICENSEE “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE SOFTWARE. PORTWORX DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND/OR ACCURACY OF INFORMATIONAL CONTENT. PORTWORX DOES NOT WARRANT THAT ANY PORTWORX SOFTWARE WILL MEET LICENSEE REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
2.3 License Restrictions. Licensee shall not (and shall not allow any third party to), except to the extent expressly authorized in writing by Portworx: (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Portworx); (b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Software (including any reports or data printed or exported from the Software); (d) modify any part of the Software, create a derivative work of any part of the Software, incorporate the Software into or with other software, or use the Software (or any part thereof) to provide any product or service to a third party; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) use the Software if Licensee is a direct competitor of Portworx, except with Portworx’s prior written consent; (g) use the Software for or on behalf of public cloud service providers; or (h) offer the Software as part of Licensee’s solution within the Licensee’s client environment, where Licensee is a consulting company.
2.4 Third Party and Open Source Software. The Software may be distributed with or contain or use certain third party proprietary software (“Third Party Software”) and certain “open source software” or “free software” (“Open Source Software”), which may be identified in the Documentation or Portworx shall provide a list of such Third Party Software and Open Source Software, upon request. Such Third Party Software and Open Source Software are (i) not subject to the terms and conditions of Sections 2.1 (Software License) or 8 (Indemnification) and (ii) licensed under the terms of the end-user license that accompanies such software. Nothing in this Agreement limits Licensee’s rights under, or grants Licensee rights that supersede, the terms and conditions of any applicable end user license for the Third Party Software and Open Source Software. If required by any license for particular Open Source Software, Portworx makes such software, and Portworx’s modifications to that Open Source Software, available by written request.
2.5 Termination of Software License. Portworx may terminate this Agreement immediately upon notice to Licensee in the event that Licensee materially breaches any of the terms hereof. Termination of this Agreement shall not relieve Licensee of its obligation to pay all fees owed by Licensee. Upon any such termination, Licensee shall (i) immediately cease using the applicable Software and Documentation, and (ii) certify to Portworx within fifteen (15) days after termination that Licensee has destroyed, or has returned to Portworx, such Software and Documentation, and all copies thereof. The following sections shall survive termination or expiration of this Agreement: 1, 2.3, 5, 6, 7, 8, 9, 10, 11, and 12.
3.1 Portworx may accumulate and aggregate certain anonymous statistical and related data in order to improve the performance and functionality of its Software, to develop new products and/or Software or to analyze the usage of the Software. Portworx may use aggregated anonymous data for such purposes as Portworx, in its sole discretion, deems to be appropriate.
4. AUDIT AND DELIVERY.
4.1 Audit. Portworx may, at its expense but no more than once per year for on-site audits, audit Licensee’s use of the Software. Any such audit shall either be conducted by means of remote access from a Portworx location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities.
5. PROPRIETARY RIGHTS. The Software and Third Party Software are licensed and not sold to Licensee. Portworx and its suppliers exclusively own all Intellectual Property Rights in and to the Software and Third Party Software, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. No title or ownership or the Intellectual Property Rights passes under this Agreement, and all rights not expressly granted to Licensee in this Agreement are reserved. Licensee may provide suggestions or improvements to Portworx in connection with this Agreement (“Feedback”). Portworx shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software any such Feedback. The Open Source Software is subject to its license terms.
6. WARRANTIES; DISCLAIMER. Portworx warrants that the Software will operate substantially in accordance with this Agreement and the Documentation for ninety (90) days from the earlier of the date of first download of the Software. Licensee’s exclusive remedy and Portworx’s sole liability for breach of this warranty is that Portworx shall, at its own expense, use commercially reasonable efforts to correct or replace the Software. This warranty will only apply if there is no modification, alteration or addition has been made to the Software by any person other than Portworx or its authorized agents. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, PORTWORX AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. LICENSEE AGREES THAT NEITHER PORTWORX NOR ITS SUPPLIERS MAKES ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS. EXCEPT AS STATED ABOVE, PORTWORX AND ITS SUPPLIERS PROVIDE THE SOFTWARE ON AN “AS IS” BASIS. Portworx provides no warranties with respect to Third Party Software and Open Source Software. Licensee shall have the benefit of any third party warranties, service agreements and infringement indemnities contained in the purchase agreements or licenses applicable to the Third Party Software and Open Source Software.
7. LIMITATION OF LIABILITY. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PORTWORX’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO PORTWORX DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. “Excluded Claims” means any claim arising from a breach of Section 2.1 (Grant of License), 2.3 (License Restrictions) or 9 (Confidential Information). The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
8. INDEMNIFICATION. Portworx shall defend at its own expense any claims, demands or suits (“Claims”) brought against Licensee by a third party alleging that the Software, when used as authorized under this Agreement, infringes upon any third party U.S. copyright or U.S. patent registered or issued as of the date of first download of the Software. Portworx shall pay those costs and damages finally awarded against Licensee in connection with such Claims, or those costs and damages agreed to in a monetary settlement of such action provided that Licensee: (i) notifies Portworx promptly in writing of the Claims; (ii) gives Portworx sole control of the defense and settlement negotiations; and (iii) cooperates and, at Portworx’s request and expense, assists in such defense. This Section 8 states Portworx’s entire liability and licensee’s sole and exclusive remedy for any Claims. If the Software becomes, or in Portworx’s opinion is likely to become, the subject of an infringement claim, then Portworx may (at its option and expense) either: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing; or (c) terminate Licensee’s rights hereunder to use the Software and refund a portion of any price Licensee paid under this Agreement prorated over a three year period from the date of purchase. The foregoing obligations of Portworx shall not apply: (1) if the Software is modified by any party other than Portworx, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not specified in the Documentation or provided by Portworx, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to any unsupported release of the Software; (5) to any third-party code contained within the Software; or (6) if Licensee settles or makes any admissions with respect to a claim without Portworx’s prior written consent. THIS SECTION 8 SETS FORTH PORTWORX’S AND ITS SUPPLIERS’ SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9. CONFIDENTIALITY. “Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Software and Documentation are the “Confidential Information” of Portworx. Each party agrees (i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
10. PUBLICITY. Subject to Licensee’s consent, Portworx may use Licensee’s name, logo and marks to identify Licensee as a customer of Portworx on Portworx’s website and other marketing materials.
11. U.S. GOVERNMENT END USERS. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Software is provided to any federal, state or local government agency only subject to the terms and conditions of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.
12. GENERAL. This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The federal and state courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. All notices, under this Agreement must be delivered in writing by courier, by facsimile or by certified or registered mail (postage prepaid and return receipt requested) and shall be effective upon the earlier of receipt or three (3) business days after being deposited in the mail as required above. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Licensee may not assign or transfer this Agreement or its rights and obligations under this Agreement. Licensee agrees not to export the Software in violation of the laws and regulations of the United States or any other nation. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the extent necessary to make it valid and enforceable and the remaining provisions shall continue in full force and effect. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Licensee’s form of purchase order, acknowledgment or other business forms notwithstanding Portworx’s acceptance or acknowledgment of such business forms. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Portworx may use the services of subcontractors and permit them to exercise the rights granted to Portworx in furtherance of Portworx’s performance under this Agreement, provided that Portworx remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Portworx as required under this Agreement.