Portworx Essentials License Agreement

THIS PORTWORX ESSENTIALS LICENSE AGREEMENT (THE “AGREEMENT”), IS BETWEEN THE ENTITY RECEIVING  THE ACCOMPANYING SOFTWARE (DEFINED BELOW) (“LICENSEE”) AND PORTWORX, INC., A DELAWARE CORPORATION LOCATED AT 4940 EL CAMINO REAL, SUITE 200, LOS ALTOS, CALIFORNIA 94022 (“PORTWORX”),  AND CONSISTS OF THE TERMS AND CONDITIONS GOVERNING LICENSEE’S USE OF THE SOFTWARE, AND ALL OTHER DOCUMENTS DESCRIBED BELOW, WHICH ARE INCORPORATED IN FULL BY THIS REFERENCE.   PORTWORX IS WILLING TO LICENSE THE SOFTWARE AND OTHER DOCUMENTATION DESCRIBED BELOW TO LICENSEE ON THE CONDITION THAT LICENSEE ACCEPTS AND AGREES TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. LICENSEE AND PORTWORX IS HEREINAFTER REFERRED TO AS A “PARTY” AND, JOINTLY, AS THE “PARTIES.” 

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING “ACCEPT,” “AGREE,” ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE, LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE HAS CAREFULLY READ THROUGH THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE ALSO CONFIRMS THAT IT HAS THE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF IT IS ACCEPTING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE. IF LICENSEE DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK “ACCEPT,” “AGREE,” ACCESS, DOWNLOAD, INSTALL OR USE THE PORTWORX SOFTWARE.

 

  1. DEFINITIONS

1.1 “Confidential Information” means any and all information disclosed by a party (“Discloser”) to another party (“Recipient”) related to Discloser’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 to be confidential or proprietary, including without limitation the software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers.  For the avoidance of doubt, the Software and related Documentation and specifications are the “Confidential Information” of Portworx.

1.2 Documentation means the end-user technical documentation and specifications provided or made available to Licensee by Portworx, as revised by Portworx from time to time.

1.3 “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.

1.4 Software” means Portworx Essentials software product, and any update, upgrades made available by Portworx, at Portworx’s sole discretion, and excludes any Third-Party Software and Open Source Software.

 

  1. SOFTWARE USE

2.1 Software License.  Subject to the terms and conditions of this Agreement, Portworx grants Licensee a limited, non-transferable, non-sublicensable, non-exclusive, revocable license, during the Term, to use the Software in accordance with the Documentation and in  executable object code format only,  solely  for internal development, limited production and testing purposes.

2.2 Use 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) commercialize, 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 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 or build a competing product of Portworx;  (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.

2.3 Support.  Portworx is not obligated to provide any support, upgrades or updates for the Software. Portworx provides support, upgrades or updates at Portworx’s sole discretion.

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 provided by other means.  Such Third-Party Software and Open Source Software are (a) not subject to the terms and conditions of Sections 2.1 (Software License) and (b) licensed under the terms of the end-user license that accompanies such software.

 

  1. TERMINATION

3.1 Term; Termination.  This Agreement is effective upon acceptance by Licensee and shall continue until terminated.  Either party may terminate this Agreement at any time by giving 10 days prior written notice to the other party. The parties may terminate this Agreement immediately upon written notice to the other party (a) in the event that the other party materially breaches any of the terms hereof  and fails to cure such breach within 30 days written notice or (b) if a party becomes insolvent or makes an assignment of this Agreement for the benefit of creditors or is  subject of a bankruptcy or similar proceeding.

3.2 Termination Effect. Upon any such termination, Licensee shall (a) immediately cease using the Software and Documentation, and (b) 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, 2.2, 3.2, 4, 5, 6.1-6.3, 7, 8, 9, 10 and 11.

 

  1. PAYMENT

The Software is provided to Licensee free of charge up to the limits set forth at https://www.portworx.com/products/features/.  Portworx reserves the right to change its pricing policies for the Software at any time in its sole discretion by providing prior written notice to Licensee via email, or other means of communication. To the extent such changes are adverse and material to Licensee, Licensee may terminate this Agreement by providing written notice to Portworx.  Licensee’s continued use of the Software following the expiry of a period of 30 days from Portworx’s notification shall be deemed acceptance by Licensee of any such changes.

 

  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.

 

  1. PROPRIETARY RIGHTS; FEEDBACK; AND DATA

6.1 Ownership.  Portworx and its suppliers exclusively own and retain all Intellectual Property Rights in and to the Software (including related materials) and Third-Party Software, and any modifications, improvements, enhancements, customizations, updates, upgrades or derivative works thereof.  Nothing in this Agreement shall constitute or be construed as a transfer of ownership of the intellectual property rights of Portworx.

6.2 Feedback.  Licensee may provide suggestions or improvements to Portworx in connection with this Agreement (“Feedback”).  Portworx shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any such Feedback.

6.3 Data. Licensee agrees that Portworx may receive and use any data collected in connection with the Software, which includes cluster usage information, environment information (including third-party cloud environment), application usage information, to improve performance and functionality of its products, to develop new products and/or Software, to analyze usage of the Software, for product sales and marketing initiatives. In addition, 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.

6.4 Personal Data. Licensee agrees that access to the Software may require its designated users to register on Portworx’s registration web page and PX- Central. Such registration may require a user’s full name, company name, phone number, email address, state, country and zip code, and Licensee further agrees that Portworx may receive and use such personal data as Portworx deems reasonably necessary in accordance with applicable law and in order to perform its obligations under this Agreement. For more information regarding Portworx’s processing of Licensee’s personal data and rights related thereto, please see Portworx’s Privacy Policy located at https://www.portworx.com/privacy-policy/.

 

  1. WARRANTY DISCLAIMER

EXCEPT TO THE EXTENT PERMITTED BY LAW, PORTWORX AND ITS SUPPLIERS PROVIDE THE SOFTWARE, SUPPORT AND RELATED MATERIALS “AS IS.” PORTWORX AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION AND HEREBY DISCLAIM ALL WARRANTIES FOR THE SOFTWARE, SUPPORT AND RELATED MATERIALS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.   PORTWORX AND ITS SUPPLIERS DO NOT WARRANT THAT THAT THE SOFTWARE WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS.

 

  1. LIMITATION OF LIABILITY 

8.1 IN NO EVENT WILL PORTWORX’S OR ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY LICENSEE TO PORTWORX FOR THE SOFTWARE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL PORTWORX OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS), ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. INDEMNIFICATION

Licensee agrees to defend Portworx, at its own expense, from any claims, demands or suits (“Claims”) brought against Portworx by a third party arising out of Licensee’s (1) use of the Software in violation of this Agreement or not in accordance with the Documentation, or (2) program or application infringing any copyright, patent, trade secret, or other intellectual property right of any third party.  Licensee shall pay those costs and damages finally awarded against Portworx in connection with such Claims, or those costs and damages agreed to in a monetary settlement of such action. Portworx will: (a) notify Licensee promptly in writing of a Claim; (b) give Licensee sole control of the defense and settlement negotiations provided that Licensee may not enter into any settlement adversely affecting Portworx’s interests without Portworx’s prior written consent; and (c) reasonably cooperate and, at Licensee’s request and expense, assist in such defense.

 

  1. CONFIDENTIALITY

10.1 Use. Each party agrees (a) 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 Recipient uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (b) not to disclose such Confidential Information to any third parties, except as described herein and (c) 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.

10.2 Exceptions. The restrictions set forth in this section will not apply to any Confidential Information that the Recipient can demonstrate (a) was known to it prior to its disclosure by the Discloser; (b) is or becomes publicly known through no wrongful act of the Recipient; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; or (d) is independently developed by the Recipient without reference to or use of Discloser’s Confidential Information.

10.3 Injunctive Relief. 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, Discloser will be entitled to seek injunctive relief for any threatened or actual disclosure by the Recipient.

 

  1. GENERAL

11.1. Governing Law.  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.

11.2 Notices. All notices, under this Agreement must be delivered in writing by courier, by express overnight mail or by certified U.S. mail to the address listed above for each party 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 may change their address by giving the other party  written notice of such change.

11.3 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.

11.4 Assignment. Neither party may assign or transfer this Agreement or its rights and obligations under this Agreement without the other party’s written consent. Notwithstanding the foregoing, the parties may assign this Agreement in whole without the other party’s consent to an entity that acquires all or substantially all of the business of the party through a merger, acquisition or corporate reorganization,  so long as the acquiring entity is not a direct competitor of the non-assigning party.

11.5 Compliance with Laws.  The parties will comply with all applicable laws including privacy laws, export laws and all other applicable laws, statutes and regulations. The parties agree not to export, re-export or import the Software in violation of any applicable laws and regulations of the U.S. or any other nation.

11.6 Force Majeure. 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 such failure is caused by circumstances beyond such party’s reasonable control, including without limitation, acts of God, civil disturbances, or natural disasters. Upon the occurrence of any such event, the affected party shall promptly notify the other party and use commercially reasonable efforts to resume performance.

11.7 Attorney’s Fees. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.8 Waiver; Severability. 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.

11.9 Entire Agreement. 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.   This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Notwithstanding the foregoing, Portworx reserves the right to amend this Agreement at any time by providing prior written notice to Licensee via email, by posting notice of the change or other means of communication. To the extent such changes are adverse and material to Licensee, Licensee may terminate the Agreement by providing written notice to Portworx.  Licensee’s continued use of the Software following the expiry of a period of 30 days from Portworx’s notification shall be deemed acceptance by Licensee of any such changes or amendments. Notwithstanding anything to the contrary, this Agreement will supersede the terms of Licensee’s form including purchase order, acknowledgment or other business forms notwithstanding Portworx’s acceptance or acknowledgment of such forms.

Version 04/03/2020