The following terms apply to the provision of services by Tigera (the “Services”) under the Calico Essentials Program (the “Program).
1. Payment.
Customer will pay all invoices within 30 days of the invoice date. Customer will pay all taxes (including VAT), customs, levies and other withholdings related to the Services, except that Tigera will be responsible for all employment-related taxes associated with its personnel and all taxes on its net income. In the event Tigera elects to provide onsite Services, Customer will be responsible for the reasonable travel and living expenses incurred by Tigera’s staff. Tigera may suspend Services and licenses and/or charge interest at a rate of 1.5% per month in the event of any overdue payments.
2. Ownership.
Tigera retains all right, title and interest in and to any materials or deliverables provided by Tigera (“Materials”) and to the Services (and all modifications, enhancements or derivative works thereof), including any intellectual property rights contained or embodied therein, but excluding any content or information provided by Customer which may be incorporated into the Materials (which shall remain the intellectual property of Customer). Subject to the terms of this Agreement, Tigera grants Customer a perpetual, nonexclusive, nontransferable license to use the Materials for its internal business purposes. The Program does not grant Customer any licenses to or rights to use any software (other than under the Tigera Evaluation Agreement).
3. Confidentiality.
(a) “Confidential Information” means all information provided by one party to the other party relating to the Services, except for information that: (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge through no act or omission of the receiving party; (iii) has been furnished to the receiving party by a third party whom the receiving party believes may legitimately provide the information without restriction on disclosure; (iv) was in the receiving party’s possession prior to the date of this Agreement and which was not acquired under obligations of confidentiality from the disclosing party; or (v) was independently developed by the receiving party. (b) Neither party may use the Confidential Information of the other party for any purpose or disclose it to any third party without the disclosing party’s prior written consent. However, each party may use any feedback, suggestions or ideas which the other party provides to improve such party’s products and services. Each of the parties agrees that it will disclose the other party’s Confidential Information only to its employees and contractors who need to know such information, provided that such individuals are bound by terms and conditions protecting such Confidential Information substantially similar to those of this Section 3. (c) This Section 3 will survive the expiration or termination of this Agreement for five (5) years following the date the Confidential Information was disclosed.
4. Warranty.
Tigera warrants that the Services will be performed in a professional and workmanlike manner and in accordance with applicable industry standards. Customer’s sole remedy for breach of this warranty will be re-performance of any Services that fail to conform to the warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, TIGERA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH REGARD TO THIS AGREEMENT OR THE PROGRAM, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
5. Liability.
Tigera will not have any liability for special, indirect, incidental, consequential or punitive damages of any kind or for total direct damages in excess of the amounts paid by Customer during the 12 months preceding the claim in question, regardless of the basis of the claim and even if Tigera has been advised or is aware of the possibility of such damages.
6. Termination.
Either party may terminate this Agreement if the other party fails to perform any of its material obligations hereunder and such failure has not been cured within 30 days of written notice thereof by the other party. Upon any termination of this Agreement for breach, any then-effective Evaluation Agreement(s) shall immediately terminate.
7. Nonsolicitation.
During the term of this Agreement and for one (1) year thereafter, neither party may solicit for employment or a contractor engagement or employ or engage any employee or contractor of the other party without the other party’s prior written consent. This includes any individual who was employed or engaged by the other party within the preceding three (3) months.
8. General.
(a) Customer may not assign or transfer its rights and/or obligations under this Agreement to any third party. Each party’s rights and obligations under this Agreement will bind and inure to the benefit of its permitted successors and assigns. (b) This Agreement may only be modified or amended in a document signed by an authorized representative of each party. (c) No right or obligation arising under this Agreement will be deemed waived unless the waiver is set forth in writing and signed by the waiving party. Failure or delay of a party to exercise any right or remedy will not constitute a waiver of rights or remedies. (d) The interpretation and performance of this Agreement will be governed by the laws of the State of California. (e) If any provision of this Agreement is held unenforceable or inoperative by a court of competent jurisdiction, either in whole or in part, the remaining provisions will be given full force and effect to the extent not inconsistent with the original terms of this Agreement. (f) Notices and communications required by this Agreement will be in writing and may be delivered in person, by courier or mailed prepaid first class, return receipt required, to the each party at its address listed below or another address subsequently designated in writing. (g) Neither party will be liable for failure to perform any of its obligations hereunder (other than payment obligations) where such performance is prevented or interfered with by any cause beyond the reasonable control of the party obligated to perform. (h) This Agreement constitutes the entire agreement between the parties hereto with respect to its subject matter and supersedes all prior agreements or arrangements. (i) In relation to any future software features or functions, all presentations, RFP responses and/or product roadmap documents, information or discussions, either prior to or following the date herein, are for informational purposes only, and Tigera has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to in writing by both parties. Customer acknowledges that no purchasing decisions are based upon any future software features or functions. (j) The parties’ rights and obligations under these General Terms will survive Customer’s participation in the Program.
