Portworx End User License Agreement - Portworx

End User License Agreement

 

IMPORTANT: PLEASE READ THIS PORTWORX END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE INSTALLING OR USING THE SOFTWARE PRODUCTS (“SOFTWARE”) AND PORTWORX-BRANDED PROFESSIONAL SERVICES (“SERVICES”) THAT YOU OR THE ENTITY YOU REPRESENT (“END USER”) OBTAIN FROM PORTWORX, INC. (“PORTWORX”) OR FROM ANY THIRD PARTY AUTHORIZED BY PORTWORX TO RESELL THE SOFTWARE AND SERVICES (“PARTNER”). BY CLICKING THE ACCEPTANCE BUTTON, ACCESSING, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR SERVICES, YOU: (1) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND END USER; (2) REPRESENT AND WARRANT THAT END USER HAS CAREFULLY READ THROUGH THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS; AND (3) AGREE THAT END USER IS BOUND BY THIS AGREEMENT WITH PORTWORX, UNLESS A SEPARATE WRITTEN AGREEMENT IS IN EFFECT THAT SPECIFICALLY GOVERNS THE SUBJECT MATTER HEREOF. IF END USER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE ACCEPTANCE BUTTON, ACCESS, DOWNLOAD, INSTALL OR USE THE SOFTWARE OR SERVICES.

1. Software License Options.

1.1 Term-Based Software License. End User may purchase from Portworx or Partner a Term-Based Software License, whereby subject to End User’s compliance with the terms and conditions of this Agreement, Portworx grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use the Software during the Subscription Term, as set forth in the applicable Order, in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

1.2 Consumption-Based Software License. End User may purchase from Portworx or Partner a Consumption-Based Software License, whereby subject to End User’s compliance with the terms and conditions of this Agreement, Portworx grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use the Software subject to the Reserve Commitment and other use limitations described in Section 2 of this Agreement, the applicable SKU, or Order, in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

1.3 Pay As-You-Go Software License. End User may purchase from Portworx or Partner a Pay-As-You-Go Software License, whereby subject to End User’s compliance with the terms and conditions of this Agreement, Portworx grants End User and any third party that End User authorizes to perform services involving the Software solely for End User’s benefit, a non-transferable, non-sublicensable, non-exclusive license to use the Software subject to the use limitations described in Section 3 of this Agreement, the applicable SKU, or Order in executable object code format only, solely for End User’s internal use, and solely for use in accordance with the Documentation.

1.4 Evaluation License. End User may be granted a limited-use license for evaluation purposes only of the Software (“Evaluation License”) for an initial evaluation period of 30 days (“Evaluation Period”). Portworx reserves the right to terminate the evaluation of the Software at any time, including prior to the expiry of the Evaluation Period, in its sole discretion. Evaluation Licenses are identified in the Order entered with End User and are subject to the terms and conditions of this Agreement. End User shall enter into any one of the Software License options offered by Portworx at the conclusion of the Evaluation Period, otherwise, End User’s rights under this Agreement shall terminate and End User shall promptly delete all Portworx evaluation Software. For evaluations of the Software, only Sections 1.4, 4, 7, 8.2, 9.1, 10, 11, 13, 15, 16 and 17 of this Agreement shall apply. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SOFTWARE LICENSED FOR EVALUATION UNDER THIS SECTION IS PROVIDED TO END USER “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED.

2. Consumption-Based Software Licenses – Reserve Commitment, On-Demand, and Metering Data Required.

2.1 Reserve Commitment. Consumption-Based Software Licenses include a maximum usage commitment of the Software over a Subscription Term without a right of rollover into any subsequent renewal Subscription Terms (the “Reserve Commitment”). End User’s usage of a Consumption-Based Software License is based on the maximum number of Nodes upon which the Software is deployed. Each “Node” for purposes of calculating the Reserve Commitment equals 9,000 hours of usage of the Software, per year, on any individual End User node during the Subscription Term. For example: A Reserve Commitment of ten (10) Nodes with a three (3) Year Subscription Term means End User may consume up to 90,000 node hours during any of the three (3) years of the Subscription Term. End User may increase the Reserve Commitment at any time, however End User acknowledges and agrees that any portion of a Reserve Commitment that is not consumed or otherwise utilized by the end of any year during the Subscription Term, does not rollover into any subsequent year or Subscription Term. For example: if End User has a ten (10) Node Reserve Commitment, over a 3-year Subscription Term, and only uses five (5) Nodes (45,000 node hours) during the Subscription Term, the remaining five (5) unused Nodes (45,000 node hours) as part of the original ten (10) Node Reserve Commitment, are not rolled over into any subsequent Subscription Term. In addition, for the sake of clarity, and for illustration purposes only, if End User has a ten (10) Node Reserve Commitment, over a 3-year Subscription Term, and only uses five (5) Nodes (45,000 node hours) in the first year of the Subscription Term, the five (5) unused Nodes are not rolled over to the next year and are expired. End User acknowledges and agrees that unless terminated pursuant to Section 4.2 herein, it is not entitled to a cash rebate, refund, repayment or a credit for any portion of the Reserve Commitment that is not consumed or otherwise expired by the end of the Subscription Term.

2.2 On-Demand. End User may utilize Consumption-Based Software Licenses above and beyond the Reserve Commitment by paying Portworx or Partner for On-Demand usage at the On-Demand Rate. “On-Demand” means any utilization of node hours above and beyond the Reserve Commitment.

2.3 METERING DATA REQUIRED. Portworx’s receipt of metering data is an integral component of delivering Consumption-Based Software Licenses. End User acknowledges and agrees that the rates charged for a Consumption-Based Software License is contingent upon Portworx’s receipt of metering data. Therefore, End User shall ensure that Portworx’s ability to receive metering data is enabled at all times. Notwithstanding any other rights or remedies available to Portworx, Portworx reserves the right to exercise any of the following remedies if the metering of data is not enabled at any time during the Subscription Term: (a) Portworx may request and End User shall promptly provide Portworx, a written report that includes reasonable detail of End User’s consumption usage including hourly node usage; or (b) upon 15 days’ prior notice, Portworx may suspend or terminate End User’s Software license. End User acknowledges and agrees that the Software licenses may expire or be suspended as a result of End User’s failure to enable the metering data feature. Such expiration or suspension of the Software license shall not constitute a breach by Portworx under this Agreement.

3. Pay-As-You-Go Software Licenses – Monthly Minimum.

3.1 Monthly Minimum. Pay-As-You-Go Software Licenses are a month-to-month license to use the Software, subject to a minimum monthly usage commitment of the Software as measured in node hours and set forth at https://portworx.com/products/features/ (“Monthly Minimum”). End User shall pay the Monthly Minimum to Portworx or Partner each month of a Pay-As-You-Go Software License until terminated pursuant to Section 4 of this Agreement, irrespective of whether End User’s actual usage is below the Monthly Minimum. In addition, End User shall pay for any usage of the Software in excess of the Monthly Minimum. End User is responsible for payment of 50% of the Monthly Commitment if the Pay-As-You-Go Software License is purchased after the 15th of any calendar month, and any usage in excess of the Monthly Commitment. Following that first month, Pay-As-You-Go Software Licenses renew each month and End User is responsible for payment of the Monthly Commitment unless terminated pursuant to Section 4 of this Agreement.

4. Term and Termination.

4.1 Termination for Cause. Either party may terminate this Agreement for cause, immediately upon written notice to the other party if (collectively, “For Cause”): (a) the other party materially breaches any of the terms of this Agreement, and fails to cure that breach within 30 days of its receipt of written notice of that breach; or (b) a party becomes insolvent or makes an assignment of this Agreement for the benefit of creditors or is the subject of a bankruptcy or similar proceeding. In addition, if End User materially breaches this Agreement, or fails to pay any undisputed amounts when due, then upon 7 days’ notice, Portworx may suspend the applicable Software licenses until that breach is cured. Any suspension will not affect, or otherwise toll the Subscription Term or any amounts due for the period of the suspension.

4.2 Termination for Convenience. End User may terminate this Agreement at any time by (a) providing Portworx 30 days’ prior written notice for any Term-Based, Consumption-Based Software, or Pay-As-You-Go licenses; and (b) paying for all utilization or consumption of the Software through the date of termination.

4.3 Effect of Termination. End User will receive a pro-rata refund on any prepaid, unused and unexpired portion of: (a) the Subscription Term as of the date of termination, for all Term-Based Software Licenses; (b) the Reserve Commitment for all Consumption-Based Software Licenses; or (c) the Monthly Minimum for all Pay-As-You-Go Software Licenses. Upon Portworx or Partner’s refund of the unused portion of the Reserve Commitment or Monthly Minimum (as applicable), End User is also relieved of any future Reserve Commitment or Monthly Minimum obligations thereunder. End User shall cease using the Software and return or destroy all Portworx Confidential Information. The following sections shall survive termination or expiration of this Agreement: 4, 5, 6, 7, 8.2, 10, 11, 13, 15, 16 and 17.

5. Purchasing and Invoicing Terms.

5.1 Purchases Made via Partner. Except for Pay-As-You-Go Licenses, all other Software Licenses are purchased via a Partner. All pricing, payment, and delivery terms for the Software are set forth in the order between End User and the Partner. However, invoicing for all Software Licenses are subject to this Section 5.

5.2 Term-Based Software Licenses. Portworx or Partner invoice for all Term-Based Year Licenses in advance for each year of the Subscription Term.

5.3 Consumption-Based Software License – Reserve Commitments. Reserve Commitments for Consumption-Based Software Licenses are billed at the Reserve Rate, in advance during the Subscription Term.

5.4 Consumption-Based Software License – On-Demand Usage. On-Demand utilization is billed at the On-Demand Rate, calendar-quarterly in arrears during the Subscription Term.

5.5 Pay-As-You-Go Software License – Monthly Minimum. Monthly Minimums are invoiced monthly in arrears.

6. Payment for Pay-As-You-Go Software Licenses.

6.1 Payment Terms. End User shall pay all invoices for Pay-As-You-Go Licenses issued by Portworx 30 days from receipt of invoice. Portworx reserves the right to charge one and one-half percent (1 ½) per month on the unpaid balance or the maximum rate allowed by law, whichever is less for any amounts not paid when due. If an electronic payment method is required by Portworx, then End User authorizes Portworx to automatically charge the payment method provided to Portworx’s third party payment processor. If Portworx approves End User for credit terms (i.e. a monthly invoicing option), Portworx will invoice End User for the Monthly Minimum in arrears and End User shall pay the Monthly Minimum within 30 days after the end of the calendar month in which the Monthly Minimum applies.

6.2 Taxes. The fees and charges covered under this Agreement are exclusive of any taxes, duties, or tariffs imposed or levied on the Software and any services that may be provided under the Agreement. End User is responsible for, and will promptly pay in full, all taxes and duties of any kind including, but not limited to sales, use, and withholding taxes, except for taxes based on Portworx’s net income.

6.3 Orders. All Orders are subject to Portworx’s written acceptance. Except as set forth in Section 4 of this Agreement, all Orders are non-cancellable and non-refundable.

7. Software Restrictions and Ownership.

7.1 Restrictions. End User shall not directly or indirectly: (a) reproduce, modify, assign, disclose or make available any portion of the Software (or any related documentation) to any third party (except as otherwise authorized herein); (b) rent, lease or sublicense the Software, unless otherwise authorized by Portworx in writing; (c) reverse engineer, decompile, or disassemble any portion of the Software, or otherwise attempt to decrypt, extract, or derive the source code for, or any algorithms or data structures embodied within, any portion of the Software (except to the extent the foregoing restriction is expressly prohibited by applicable law); (d) monetize, distribute, or sell the Software (or any related documentation); (e) use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; (f) use the Software to develop a similar product or service; (g) publish or disclose to any third party any technical features, performance or benchmark tests, or comparative or competitive analyses related to the Software, except for internal use by the End User or as may be authorized by Portworx in writing; (h) remove any product identification, proprietary, copyright or other notices contained in the Software (including any reports or data printed or exported from the Software); (i) modify any part of the Software, create a derivative work of any part of the Software, incorporate or embed 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; (j) use the Software if End User is a direct competitor of Portworx, except with Portworx’s prior written consent; (k) use the Software for or on behalf of public cloud service providers; or (l) offer the Software as part of End User’s solution within the End User’s client environment, where End User is a consulting company.

7.2 Ownership. All software provided under this Agreement is licensed and not sold to End User. Portworx and its suppliers shall exclusively own and retain all intellectual property rights, including patent, trademark, trade name and copyright, whether registered or not registered, in and to the Software and related documentation, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. Portworx and its suppliers reserve all rights not expressly granted herein, and no other license or other implied rights not expressly granted herein, and no other license or other implied rights of any kind are granted or conveyed. No title or ownership of the intellectual property rights passes under this Agreement, and all rights not expressly granted to End User in this Agreement are reserved. In the event that items of software code provided with the Software are subject to “open source” or “free software” licenses, nothing herein limits End User’s rights under, or grants rights that supersede, the applicable license therefor.

8. Pre-Release Software and Feedback.

8.1 Pre-Release Software. Portworx may make available to End User beta or pre-release versions of the Software (“Pre-Release Software”). End User acknowledges that Pre-Release Software products: (a) are not at the level of performance or compatibility of final, generally available products; (b) are not to be used in a production environment; (c) may not operate correctly; and (d) may be modified prior to being made generally available. End User agrees to notify Portworx of any bugs or problems in Pre-Release Software.

8.2 Feedback. End User may provide feedback to Portworx regarding the use, operation, performance, and functionality of the Software products, including identifying potential errors and improvements (collectively, “Feedback”). End User grants to Portworx a perpetual, irrevocable, worldwide, sublicenseable, fully paid-up and royalty-free right to modify and use the Feedback in any manner, provided that Feedback is anonymized and does not identify End User.

9. Support.

Support. Portworx may provide the generally available Software maintenance and technical support in accordance with the Pure Storage Customer Support Guide during the term for which End User has purchased such Software subscription. Portworx may designate support partners and authorized resellers to deliver the Portworx Software in accordance with the terms of this Agreement. Pure-branded or Portworx-branded professional installation or other Services are provided to End User under the terms of Pure’s Professional Services Addendum, incorporated herein by reference.

10. Data.

10.1 Data. 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.

10.2 Usage Data. End User agrees that Portworx may, to the extent permitted by law, receive and use certain usage data collected in connection with the Software licensed under this Agreement including cluster UUID, cluster ID, number of nodes and node types to provide billing information and usage information pursuant to this Agreement. This data may also be used to evaluate and improve Portworx products, for product sales and marketing initiatives (without identifying End User). Such information may be shared with service providers, vendors or agents only for the purpose of performing services on Portworx’s behalf.

10.3 Personal Data. End User agrees that access to the Software requires its designated users to register on Portworx’s registration web page and PX-Central. Such registration requires user’s full name, company name and email address. End User further agrees that Portworx may, to the extent permitted by applicable law, receive and use such data in order to respond to End User support requests, to contact End User regarding products and/or services, and to perform its obligations under this Agreement. For more information regarding Portworx’s processing of End User’s personal data and rights related thereto, please visit Portworx’s Privacy Policy located at https://portworx.com/privacy-policy/ (as may be updated by Portworx from time to time).

11. Audit. Portworx may at its expense, but no more than once per year for on-site audits, audit End User’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 End User’s facilities and shall not unreasonably interfere with End User’s business activities.

12. Warranty and Disclaimer.

12.1 Software Warranty. Subject to this Section 12, Portworx warrants that the Software will perform in substantial accordance with the corresponding Software Documentation for 90 days from the date of shipment by Portworx.

12.2 Limited Warranty Process. End User may contact Portworx via email at [support@purestorage.com or phone at +1 (866) 244-7121] for warranty service. End User’s exclusive remedy and Portworx’s sole liability for breach of this software warranty is that Portworx shall, at its own expense, use commercially reasonable efforts to correct or replace the Software. This warranty is provided to the original End User only and is not transferable.

12.3 Exclusions. The warranties herein do not cover defects or damages resulting from: (a) use of Software other than in a normal and customary manner in accordance with Portworx’s Documentation; (b) physical or electronic abuse or misuse, accident, or neglect; or (c) modification, alterations or addition made to the Software that are not authorized by Portworx in writing. Pre-Release Software products are provided without warranty or liability of any kind, for use at End User’s own risk. Portworx will use reasonable efforts to destroy (but have no liability for any loss or inadvertent disclosure of) data stored or remaining on a Software product returned to Portworx. Under this Agreement, all returned Software products and components become the property of Portworx. Portworx does not honor any warranties or support contracts for Software purchased through grey market channels (i.e. sources and/or sales channels other than authorized Portworx resellers, regardless of what may be advertised).

12.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, PORTWORX AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, TO THE EXTENT WARRANTIES MAY BE DISCLAIMED UNDER APPLICABLE LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PORTWORX DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR WILL FULFILL ANY OF END USER’S PARTICULAR PURPOSES OR NEEDS. PORTWORX PROVIDES THE SOFTWARE ON AN “AS IS” BASIS. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE WHERE FAILURE OF THE SOFTWARE COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR PROPERTY DAMAGE. END USER IS RESPONSIBLE FOR ENSURING THAT IT HAS APPROPRIATE DATA BACK-UP, DATA RECOVERY, AND DISASTER RECOVERY MEASURES IN PLACE.

13. Confidentiality. “Confidential Information” means any and all non-public, confidential or proprietary information of a disclosing party (“Discloser”), whether disclosed orally or in written or digital media, received by the receiving party (“Recipient”), that is identified as “confidential” or with a similar legend at the time of such disclosure or that Recipient knows or should have known is confidential or proprietary information of Discloser. Portworx’s Confidential Information includes all non-public information relating to, or derived from, the Software and Services, including technical features, benchmark results, or performance results. Information does not constitute a party’s Confidential Information if it (a) is already known by Recipient without obligation of confidentiality; (b) is independently developed by Recipient without use of Discloser’s Confidential Information; (c) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. Recipient shall: (i) not use or disclose any Confidential Information except as expressly authorized by this Agreement or Discloser; (ii) protect Discloser’s Confidential Information using the same degree of care that it uses with respect to its own confidential information of a like nature, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; and (iii) limit access to Discloser’s Confidential Information to its employees, affiliates, agents, or authorized representatives having a need to know and who are bound by confidentiality obligations no less protective to those contained herein. Recipient shall take prompt and appropriate action to prevent unauthorized use or disclosure of Discloser’s Confidential Information. Recipient’s obligations under this Section 13 survive termination and continue for five (5) years from the date of termination of this Agreement. All tangible materials containing Confidential Information shall remain the property of Discloser. Upon termination, Recipient shall cease any use of Confidential Information. Upon Discloser’s written request, the receiving party shall promptly return (or at Discloser’s option, destroy) all documents and tangible materials containing any portion of, or summarizing, Discloser’s Confidential Information. At Discloser’s request, an authorized representative of Recipient shall provide a certificate attesting to compliance with this section. If any Confidential Information must be disclosed to any third party by reason of legal, accounting, or regulatory requirements, Recipient shall promptly notify Discloser of the order or request and permit Discloser (at its own expense) to seek an appropriate protective order. 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 Discloser will be entitled to seek injunctive relief for any threatened or actual disclosure by the Recipient.

14. Indemnification. Portworx will indemnify and defend End User, at Portworx’s expense, against any action brought by a third party against End User to the extent that the action is based upon a claim that the Software directly infringes any copyrights or U.S. patents or misappropriates any trade secrets, and Portworx will pay those costs and damages finally awarded by a court of competent jurisdiction against End User in any such action that are specifically attributable to such claim or those costs and damages agreed to by Portworx in a monetary settlement of such action. If End User’s use of the Software is, or in Portworx’s opinion is likely to become, enjoined as a result of an infringement claim, Portworx will, at its option and expense, either (a) procure the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent; or (c) if, despite its commercially reasonable efforts, Portworx is unable to do either (a) or (b), Portworx will terminate the rights herein, and refund a portion of any price End User paid under this Agreement prorated over a three year period from the date of purchase. Notwithstanding the foregoing, Portworx will have no obligation with respect to any infringement claim based upon (i) any use of the Software that is not in accordance with this Agreement or the corresponding Software documentation; (ii) any use of the Software in combination with other products, equipment, software, or data not supplied by Portworx if such infringement would not have arisen but for such combination; (iii) use of any release of the Software other than the current and immediately preceding version; or (iv) any modification of the Software by any person other than Portworx if such infringement would not have arisen but for such modification. This Section 14 states Portworx’s entire liability, and End User’s sole and exclusive remedy, for infringement claims and actions. The obligations of this Section 14 are subject to End User notifying Portworx promptly in writing of such action, giving Portworx sole control of the defense thereof and any related settlement negotiations, and cooperating and assisting in such defense at Portworx’s reasonable request and expense (including reasonable attorneys’ fees).

15. Limitation of Liability. IN NO EVENT WILL PORTWORX, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS AND EMPLOYEES NOR ITS SUPPLIERS (COLLECTIVELY, THE “PORTWORX PARTIES”) BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOST OR CORRUPTED DATA, OR INTERRUPTION OF BUSINESS ARISING IN CONNECTION WITH THE USE OF THE SOFTWARE OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF THE PORTWORX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN PORTWORX’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PORTWORX PARTIES’ AGGREGATE LIABILITY UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY END USER FOR SOFTWARE THAT GAVE RISE TO SUCH CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

16. General.

16.1 Governing Law. This Agreement is governed and interpreted by and under the laws of the State of California without giving effect to any conflicts of law principles. The parties expressly consent to the jurisdiction of, and venue in, the state and federal courts in Santa Clara County, California for any lawsuit filed there arising from or related to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16.2 Notices. Except as specifically stated, all notices or other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt.

16.3 Relationship. 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.

16.4 No Assignment. This Agreement, and End User’s rights and obligations herein, shall not be assigned by End User without Portworx’s prior written consent, which consent will not be unreasonably withheld. Any attempted assignment in violation of the foregoing is null and void.

16.5 Compliance with Laws. The parties agree to comply with all laws applicable to the distribution and use of the Software and performance of its obligations under this Agreement.

16.6 Force Majeure. Neither party is liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, volcanic eruption, material shortages or any other cause that is beyond the reasonable control of the party.

16.7 Privacy. This Agreement is subject to Portworx’s Privacy Policy, which is incorporated by this reference into this Agreement. End User is solely responsible for personal data managed or stored using the Software and for compliance with all applicable data privacy laws related thereto.

16.8 U.S. Government End Users. The Software and related documentation are “commercial off the shelf items” as defined in FAR 2.101 and their use is subject to the policies set forth in FAR 12.211, FAR 12.212 and FAR 227.7202, as applicable.

16.9 Waiver and Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement remain enforceable and the invalid or unenforceable provision is deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

16.10 Export. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. End User agrees not to export, re-export, or transfer, directly or indirectly, any technical data acquired from Portworx, or any products incorporating such data, in violation of applicable export laws or regulations. For purposes of Portworx’s compliance with applicable export laws, End User agrees to provide Portworx with applicable end use information upon Portworx’s request.

16.11 Entire Agreement and Modification. This Agreement, including any terms referenced herein, is the entire agreement between the End User and Portworx with respect to the subject matter hereof. Any varying or additional terms relating to the subject matter hereof in any purchase order, discussion, or other written document will be of no effect. Portworx reserves the right to update this Agreement from time to time, as noted by the “Last Updated” date below.

17. Definitions.

17.1 “Documentation” means the standard end-user technical documentation and specifications that Portworx provides or makes available with the Software, as revised by Portworx from time to time.

17.2 “Orders” means the ordering document issued by End User and accepted by Portworx or Portworx’s authorized reseller, as applicable, that describes the Software Portworx will provide to End User, the fees and any other applicable commercial terms.

17.3 “Software” means the Portworx proprietary software set forth in an Order, the Documentation, and any Update thereto if and when such Updates are made available by Portworx, and excludes open-source Software.

17.4 “Subscription Term” means the term of the subscription license to the Software, as set forth on the applicable Order.

17.5 “Update” means an update of the Software that Portworx makes generally available at no additional charge to other 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 End User 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.

Last Updated: August 4, 2021