End User Subscription Agreement
THIS TIGERA END USER SUBSCRIPTION AGREEMENT (TOGETHER WITH ANY ORDER FORM OR SIMILAR PURCHASING DOCUMENT, THE “AGREEMENT”) IS BY AND BETWEEN TIGERA, INC., LOCATED AT 58 MAIDEN LANE, SAN FRANCISCO, CA 94108 (“TIGERA”) AND THE INDIVIDUAL OR LEGAL ENTITY WHO HAS EXECUTED AN ORDER FORM OR IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY TIGERA (“END USER”) AND GOVERNS ALL USE BY END USER OF THE TIGERA SOFTWARE REFERENCED IN SUCH ORDER FORM.
BY EXECUTING AN ORDER FORM, END USER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “END USER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM AND MAY NOT USE THE LICENSED SOFTWARE OR THE SUBSCRIPTION SERVICES (EACH AS DEFINED BELOW).
Capitalized terms shall have the meanings set forth in Exhibit A.
1.1 Licensed Software. Subject to End User’s timely payment of the Subscription Fee and compliance with the terms and conditions of this Agreement, Tigera hereby grants End User a limited, non-exclusive, non-transferable, non-sub-licensable license during the applicable Subscription Term to install, copy and use the Licensed Software for End User’s internal business purposes, in connection with the deployment of no more than the number of Instances as are set forth in the Order Form.
1.2 OSS. If applicable, OSS is distributed or made available under the terms of the open source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files. Copyrights and other proprietary rights to the OSS are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files.
1.3 License Authorization Code. End User shall not destroy, disable or circumvent, or attempt to destroy, disable or circumvent in any way the Authorization Code and/or the use and time limitations set by the Authorization Code or the Licensed Software. End User acknowledges and agrees that any attempt to exceed the use of the Licensed Software beyond the limits configured into the Authorization Code will automatically and immediately terminate the licenses granted under this Agreement.
2.1 Subscription Services. Subject to End User’s timely payment of the Subscription Fee and compliance with the terms and conditions of this Agreement, Tigera shall provide to End User the Subscription Services during the Subscription Term. End User must purchase Subscription Services corresponding to the number of Instances specified in the Order Form. End User must purchase the same level of Subscription Services with respect to all such Instances. In addition, the End User may not use Instances of OSS that has not been identified on an Order Form, on computers and or servers that are part of the environment in which Subscription Services are provided. Unless renewed, the Subscription Services will expire at the end of the applicable Subscription Term. This means that while the End User is free to use the OSS after the expiration of the applicable Subscription Term, Tigera will not provide the Subscription Services after the end of the applicable Subscription Term.
2.2 Renewal. Unless otherwise stated in the applicable Order Form, or canceled by End User no later than 30 days prior to each Renewal Date, the subscription shall automatically renew for another renewal subscription term.
2.3 Subscription Fee Payment. Payment of the Subscription Fee shall be made by End User as set forth in the applicable Order Form. All payments by End User to Tigera hereunder shall be made free and clear of and without reduction for all applicable sales or use, goods and services, value added, consumption or other similar fees or taxes imposed by any government (other than taxes on the net income of Tigera), which shall be paid by End User. Accordingly, if End User is required to withhold any taxes on the amounts payable to Tigera hereunder, End User shall pay Tigera such additional amounts as are necessary to ensure receipt by Tigera of the full amount which Tigera would have received but for the deduction on account of such withholding. End User shall provide Tigera with official receipts issued by the appropriate governmental agency or such other evidence as is reasonably requested by Tigera to establish that such taxes have been paid. Where applicable law requires End User to self-assess or reverse-charge any taxes, End User shall be responsible for complying with such law. In such a case, End User undertakes to provide Tigera with End User’s valid VAT registration number that is relevant to the software and service provided under the terms of this Agreement. The amounts of any taxes required to be paid by Tigera will be added to Tigera’s invoice, and End User shall promptly remit such amounts to Tigera, as the collection agent, upon invoice.
2.4 Support from Tigera’s Business Partners. In some cases, End Users may also receive support services, as part of the purchased Subscription Services, from a Tigera authorized business partner (each, a “Tigera Authorized Business Partner”). Notwithstanding anything to the contrary in Section 2.1, if End User purchases support services from a Tigera Authorized Business Partner, Tigera shall have no obligation to provide any support services to the End User and End User should work with that Tigera Authorized Business Partner to obtain all support services for the Supported Software.
3. Restricted Activities.
End User will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Licensed Software (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Licensed Software; use the Licensed Software for benchmarking, timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; remove, alter or obscure in any way the proprietary rights notices (including copyright, patent and trademark notices and symbols) of Tigera or its suppliers contained on or within any copies of the Licensed Software; or use the Licensed Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
4. Ownership of Licensed Software.
Tigera and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, End User shall acquire no other rights, express or implied, in or to the Licensed Software, and all rights not expressly provided to End User hereunder are reserved by Tigera and its licensors. All the copies of the Licensed Software provided or made available hereunder are licensed, not sold.
5. Records and Audit.
End User shall establish and maintain complete and accurate records related to the location, access and use of the Supported Software by End User, its employees or its agents, and any such other information as reasonably necessary for Tigera to verify compliance with the terms of this Agreement. Such records shall be kept for at least 3 years following the end of the quarter to which they pertain. Upon prior notice, Tigera or its representative may inspect such records to confirm End User’s compliance with the terms of this Agreement. Prompt adjustments shall be made by End User as directed by Tigera to compensate for any errors or breach discovered by such audit, such as underpayment of the Subscription Fee, with the applicable late payment interest. Additionally, if End User has underpaid Tigera or its authorized reseller by more than 5% of the total amount owed hereunder, the cost of the audit shall be borne by End User.
Unless otherwise terminated in accordance with this section, this Agreement will remain in effect until all Subscription Services granted under this Agreement have expired. Either party may terminate this Agreement and any Order Form incorporating the terms of this Agreement (if Tigera is a party to such Order Form) if the other party materially breaches this Agreement and fails to cure such breach within 30 days of receiving written notice thereof. Unless otherwise agreed by the parties, upon the expiration or termination of this Agreement or any Order Form all Subscription Services granted herein or therein will automatically terminate and End User will discontinue all use of the applicable Licensed Software and Supported Software and will return to Tigera any materials (including any copies of Licensed Software) provided by Tigera to End User. Sections 1.2, 4, 5, 7, 8, 10, 11,13 and Exhibit A shall survive any termination or expiration of this Agreement or any Order Form.
End User may submit to Tigera bug reports, comments, feedback or ideas about the Supported Software, including without limitation about how to improve the Supported Software. By submitting any Feedback, End User hereby assigns to Tigera all right, title, and interest in and to the Feedback, if any.
8.1 Definition. “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Receiving Party under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Disclosing Party by third parties. For the purposes of this Agreement, the Licensed Software, and the results of any performance, functional or other evaluation of the Licensed Software, shall be deemed Confidential Information of Tigera.
8.2 Exceptions. The confidentiality obligations in this Section 8 shall not apply with respect to any of the Discloser’s Confidential information which Receiving Party can demonstrate: (a) was in the public domain at the time it was disclosed to Receiving Party or has become in the public domain through no act or omission of Receiving Party; (b) was known to Receiving Party, without restriction, at the time of disclosure as shown by the files of Receiving Party in existence at the time of disclosure; (c) was disclosed by Receiving Party with the prior written approval of Disclosing Party; (d) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information by employees or other agents of (or contractors hired by) Receiving Party who had no access to or did not rely on Discloser’s Confidential Information; (e) became known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of this Agreement by Receiving Party and otherwise not in violation of Disclosing Party’s rights.
8.3 Restrictions on Use and Disclosure. The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (i) to give access to such Confidential information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.
8.4 Compelled Disclosure. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Tigera may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Licensed Software’s performance.
8.5 Injunctive Relief. Receiving Party acknowledges that breach of the confidentiality obligations would cause irreparable harm to Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, Receiving Party agrees that Disclosing Party is entitled to immediate injunctive relief in the event of breach of an obligation of confidentiality by Receiving Party, and that Disclosing Party shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
8.6 Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Disclosing Party. At any time, upon Disclosing Party’s reasonable request, Receiving Party shall promptly (and in any event within 30 days) return to Disclosing Party or destroy, at the election of the Disclosing Party, any Confidential Information of the Disclosing Party. In addition, within 30 days after termination of this Agreement, Receiving Party shall (i) promptly return all tangible materials containing such Confidential Information to Disclosing Party, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Receiving Party, its contractors and its distributors, and confirm in writing that all materials containing Confidential Information have been destroyed or returned to Disclosing Party, as applicable, by Receiving Party. Receiving Party shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
9. No Warranties.
END USER EXPRESSLY UNDERSTAND AND AGREE THAT ALL USE OF THE SUPPORTED SOFTWARE IS AT END USER’S SOLE RISK AND THAT THE SUPPORTED SOFTWARE AND SUPPORT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TIGERA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SUPPORTED SOFTWARE OR SUPPORT SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TIGERA OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TIGERA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) END USER’S USE OF THE SUPPORTED SOFTWARE OR SUPPORT SERVICES WILL MEET END USER’S REQUIREMENTS, OR (B) END USER’S USE OF THE SUPPORTED SOFTWARE OR SUPPORT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT TIGERA’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. END USER UNDERSTANDS AND ACKNOWLEDGES THAT THE SUPPORTED SOFTWARE IS NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
10.1 By Tigera. Tigera shall hold End User harmless from liability to unaffiliated third parties resulting from infringement by the Licensed Software of any United States patent or any copyright or misappropriation of any trade secret, provided Tigera is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Tigera will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Licensed Software (i) not created by Tigera, (ii) resulting in whole or in part in accordance from End User specifications, (iii) that are modified after delivery by Tigera, (iv) combined with other products, processes or materials (including, without limitation, OSS) where the alleged infringement relates to such combination, (v) where End User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where End User’s use of is not strictly in accordance with this Agreement and all related documentation.
10.2 Limitation of IP Damages. Should any Licensed Software, or the operation thereof, become or in Tigera’s opinion be likely to become, the subject of such claim described in Section 10.1, Tigera may, at Tigera’s option and expense, procure for End User the right to continue using the Licensed Software, replace or modify the Licensed Software so that it becomes non-infringing, or terminate the license granted hereunder for such Licensed Software. THIS SECTION 10 STATES TIGERA’S SOLE AND EXCLUSIVE LIABILITY, AND END USER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
10.3 By End User. End User agrees to hold harmless and indemnify Tigera and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to End User’s breach of this Agreement, use of the Supported Software, or violation of applicable laws, rules or regulations in connection with the Supported Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Tigera will provide End User with written notice of such claim, suit or action.
11. Limitation of Liability.
11.1 Exclusion of Damages. END USER EXPRESSLY UNDERSTANDS AND AGREES THAT TIGERA, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO END USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY END USER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON TIGERA’S LIABILITY SHALL APPLY WHETHER OR NOT TIGERA HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT TIGERA’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
11.2 Liability Cap. THE TOTAL LIABILITY OF TIGERA ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY END USER FOR THE RELEVANT SUPPORTED SOFTWARE UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
12. Export Restrictions.
End User understands that Supported Software or components thereof may be subject to United States export controls administered by the U.S. Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control. End User acknowledges and agrees that the Supported Software shall not be used, transferred or otherwise exported or re-exported to countries as to which the United States, maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Entity List, Denied Persons List, or Unverified List, or the U.S. Department of State’s Nonproliferation Sanctions list (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Supported Software, End User represents and warrants that End User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. End User agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining United States government export licenses to export or re-export as may be required. End User will defend, indemnify, and hold harmless Tigera and its suppliers and licensors from and against any violation of such laws or regulations by End User or any of its agents, officers, directors or employees.
The Supported Software and any other software covered under this Agreement are “commercial items” 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Supported Software and any other software and documentation covered under this Agreement with only those rights set forth herein. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. Each party agrees to submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from this Agreement. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Tigera may assign the entirety of its rights and obligations under this Agreement, without consent of the End User, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. Together with any Order Forms, this is the entire agreement between the parties relating to the subject matter hereof. This Agreement (including applicable Order Forms) shall control over any additional or different terms of any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable. When a new Subscription Term begins the most current version of this Agreement made available by Tigera shall be applicable to End User’s use of the Software.
“Feedback” means any comments or other feedback End User may provide to Tigera concerning the functionality and performance of the Supported Software, including identification of potential errors and improvements.
“Instance” means a single deployment of Licensed Software or Supported Software, as applicable, installed on a physical or virtual computer or server, limited to two physical processor sockets in the case of a physical server. An Instance may also be referred to as a “Node” on an Order Form or in Tigera documentation.
“Authorization Code” means the license authorization code or similar control mechanism to help ensure compliance with the applicable terms and restrictions regarding the Licensed Software.
“Licensed Software” means the Tigera software identified on an Order Form (other than OSS) and licensed to End User pursuant to the terms of this Agreement, e.g., the “Tigera Essentials Toolkit” software or other licensed software from Tigera that is identified on the Order Form (excluding any OSS included therein).
“OSS” means Tigera or third party software identified at Component Licenses and Open Source Attribution, or otherwise included or referenced in a distribution from Tigera, that is distributed or otherwise made available as “free software”, “open source software” or under a similar licensing or distribution model.
“Order Form” means an ordering document referencing this Agreement between End User and Tigera, or between End User and a Tigera Authorized Business Partner.
“Renewal Date” means the end of the initial term and/or the end of each subsequent renewal subscription term.
“Subscription Fee” means the fee for Subscription Services purchased by the End User. The amount of the Subscription Fee is based on the number of Instances and the level of Subscription Services specified in the Order Form.
“Subscription Term” means the applicable initial and/or renewal subscription term as set forth in the applicable Order Form.
“Supported Software” means the Tigera or third party software identified on the Order Form as software for which Tigera or its authorized resellers agree to provide Subscription Services to End User. For purposes of clarity, Supported Software may include Licensed Software and/or identified versions of OSS with respect to which Tigera agrees to provide updates, patches and hotfixes to End User.
“Subscription Services” means standard support and maintenance services and software updates provided by Tigera for the Supported Software, as set forth at Subscription Support Policy.