FOR PANZURA PRODUCTS AND SUPPORT
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT” AND OR DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THIS SOFTWARE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES THE AGREEMENT BETWEEN YOU AND PANZURA RESPECT TO THE PRODUCT, TO THE EXCLUSION OF ANY PRE-PRINTED OR CONTRARY TERMS OF ANY PURCHASE ORDER (OR SIMILAR DOCUMENT) AND SUPERSEDES AND CANCELS ANY PRIOR DISCUSSIONS, UNDERSTANDINGS OR REPRESENTATIONS BETWEEN THE PARTIES. THIS AGREEMENT MAY NOT BE MODIFIED OR WAIVED, EXCEPT BY A MUTUAL SIGNED WRITING, AND, IF THIS AGREEMENT IS DEEMED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
This End User License Agreement and any applicable Ordering Document (as defined below) (collectively the “Agreement”) is legally binding between the purchasing entity (“Customer”) and Panzura, Inc. (“Panzura”) regarding Customer’s purchase, evaluation, and/or license of the Products as described below. This Agreement is effective as of the earlier of the date set forth on the applicable Ordering Document or the date that Customer accepted this Agreement as described above (“Effective Date”).
1.1. “Documentation” means any user instructions, manuals or other materials, and on – line help files regarding the use of the Product(s) that are generally provided by Panzura in connection with the Product(s).
1.2. “Hardware Product(s)” means the hardware product(s) provided by Panzura, upon which the Software is embedded, as more fully described in the applicable Ordering Document.
1.3. “Ordering Document” means the transaction documentation between Customer and Panzura or its authorized reseller describing the Products purchased/licensed by Customer, license terms and restrictions and fees described therein. Such Ordering Documents may include a quote with corresponding purchase order, order form, service order, or transaction detail outlined in an electronic commerce website order form.
1.4. “Product(s)” means collectively, the Hardware Product(s), if applicable, and the Software.
1.5. “Software” means Panzura’s commercially released machine – executable object code version of software for execution, as may be more fully described in the applicable Ordering Document.
2. Software Licenses and Restrictions.
2.1. License. Subject to the terms and conditions of this Agreement and subject to the applicable Ordering Document, Panzura grants to Customer a non-exclusive, non-sublicenseable and non-transferable license to (a) use the Products solely for its own internal needs and in accordance with the Documentation; and (b) use the Documentation in connection with the permitted use of the Product(s).
2.2. Restrictions. Customer will not: (i) copy or reproduce the Product(s); (ii) modify or create any derivative works of the Product(s); (iii) decompile, disassemble, or reverse engineer the Product(s); (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product(s); (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (vi) provide access to or disclose the Product(s) to any third party, or use the Product(s) to create or provide any offering or service, whether or not it is similar or competitive to the Product(s), including without limitation processing third party data files as a consultant, service provider or otherwise; (vii) extract or use any software or content that is furnished by Panzura except as part of the Product(s); (viii) use the Product(s) for any unlawful purpose; or (ix) use the Product(s) in connection with the storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights.
3. Infrastructure Requirements. Customer is responsible for acquiring, installing, configuring, maintaining, securing, and backing up all systems architecture, information technology infrastructure, networking (including Internet), hardware and storage components that connect to the Product(s).
Proprietary Rights. The Software and Documentation contain Panzura’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. Except for the license granted under Section 2.1, Panzura reserves all right, title and interest to the Software and Documentation, including without limitation any modifications, enhancements, customizations, maintenance releases, revisions or derivative works thereof. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right under this Agreement.
5. Delivery and Title. Unless otherwise specified in an Ordering Document, delivery of Product(s) shall occur FOB Panzura’s point of shipment to a common carrier whereupon risk of loss to the Product(s) shall pass to Customer. Customer shall be responsible for all freight, handling and insurance charges. Title to the Hardware Product(s) will pass from Panzura to Customer at the time of full payment by Customer to Panzura.
6. Term and Termination.
6.1. Term. This Agreement will be effective from the Effective Date until terminated. In the case of an evaluation of the Hardware Product(s) and/or Software, this Agreement will terminate at the conclusion of the evaluation period as stated on the applicable Ordering Document, unless Customer purchases and/or licenses the Hardware Product(s) and/or Software prior to the conclusion of the evaluation period.
6.2. Termination. This Agreement may be terminated for cause by either party, in the event that the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate.
6.3. Effect of Termination. Upon termination of this Agreement, all rights granted to Customer with respect to the Software will terminate, and Customer will immediately discontinue use of the Software and any of Panzura’s Confidential Information; and, upon request by Panzura, Customer will certify in writing to Panzura within thirty (30) days that the affected copies of the Software, in whole or in part, in any form, and any Confidential Information, have either been returned to Panzura or destroyed in accordance with Panzura’s instructions. In addition, if title has not passed to Customer with respect to any Hardware Product(s), Customer will package and return such Hardware Product(s) to Panzura at Customer’s expense in accordance with Panzura’s instructions.
7. Payment. Unless otherwise specified in an Ordering Document, Customer shall pay all amounts net thirty (30) days from the date of invoice. Product(s) will be invoiced at time of shipment. Customer will be responsible for all taxes resulting from the purchases other than taxes on Panzura’s net income.
7.1. Panzura warrants for a period of ninety (90) days from delivery that (i) the Appliance Product(s) will be free from defects in materials and workmanship, and (ii) the Software will substantially conform to the Documentation.
7.2. The liability of Panzura hereunder shall be limited to replacing or repairing, or at Panzura’s option, refunding the purchase price of the affected Appliance Product(s). With respect to the Software, repair or replacement is limited to providing maintenance releases of the Software that Panzura generally makes available from time to time.
8. Limited Warranty.
8.1. Unless otherwise specified in an Ordering Document, Panzura warrants for a period of ninety (90) days from delivery that (i) the Hardware Product(s) will be free from defects in materials and workmanship, and (ii) the Software will substantially conform to the Documentation.
8.2. The liability of Panzura hereunder shall be limited to replacing or repairing, or at Panzura’s option, refunding the purchase price of the affected Hardware Product(s). With respect to the Software, repair or replacement is limited to providing maintenance releases of the Software that Panzura generally makes available from time to time.
8.3. The Product(s) contain some components subject to open source software, freeware, shareware, or similar licensing or distribution models (“Open Source Components”). Without limiting the generality of the foregoing, Panzura’s warranty obligations under this Agreement do not apply to Open Source Components.
9. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8, PANZURA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCT(S) AND DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANYIMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT THE PRODUCT(S) WILL BE UNINTERRUPTED, ERROR FREE, OR THAT CUSTOMER DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
10. Professional Services. If Customer purchases Panzura’s Remote Implementation Professional Services offering, the specific deliverables and terms and conditions for such services are described at http://go.panzura.com/rs/panzura/images/Panzura_Remote_Implementation_SOW_14_0101.pdf.
11. PRODUCT SUPPORT.
11.1. During the subscription period and subject to the applicable fees designated in the Ordering Document, Panzura will provide Product Support to Customer at the applicable service level, as described at www.panzura.com/support/.
11.2. The initial Product Support subscription will commence on the Effective Date and continue for the applicable term specified in the Ordering Document, but no less than one (1) year, and upon expiration will automatically renew for additional one year periods, unless either party provides written notification of cancellation to the other party at least thirty (30) days prior to the current term. Reinstatement of lapsed Support, if any, is subject to Panzura’s then – current support services reinstatement policy and fees in effect on the date the reinstatement is granted.
12. LIMITATION OF LIABILITY. PANZURA’S LIABILITY ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT PANZURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE PRODUCT(S) ARE NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN ANY AERONAUTICAL, NUCLEAR, MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE USE OF THE SUPPORTED SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR.
13. 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, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Product(s), their structure, organization, code, and related documentation are the “Confidential Information” of Panzura. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below 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; (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.
14. Government. The Product(s) are “commercial items” as that term is defined at 48 C.F.R. 2.101; the Software and Documentation consists 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 Product(s) and any other software and documentation covered under this Agreement with only those rights set forth herein. Customer acknowledges and agrees that the Software may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees to comply with all applicable export and re-export control laws and regulations.
15. Intellectual Property Indemnity. Panzura will (i) defend and indemnify Customer against any suit or proceeding by a third party to the extent based on a rightful claim that the Products directly infringes any valid U.S. patent or U.S. copyright, or misappropriates any valid trade secret enforceable under the laws of the United States or a jurisdiction thereof, and (ii) pay any damages finally awarded in such suit or proceeding as a result of such claim (or pay any settlement of such claim), provided that Customer will promptly notify Panzura in writing of the third party claim, suit or proceeding (in any event, within thirty (30) days after Customer becomes aware or reasonably should have been aware of such claim); authorizes and allows Panzura to have sole control of the defense and/or settlement of the claim; and provides any information, assistance and other cooperation reasonably requested by Panzura in connection with the claim, suit or proceeding. In the event of a claim relating to an Product, Panzura will, at its sole option and expense: (a) procure for Customer the right to continue to use and, if and as applicable, for Customers the right to use the Products under the terms of this Agreement; (b) replace or modify the Products to be (or to make it more likely to be) non-infringing; or (c) if the foregoing options are not reasonably practicable, then Panzura may terminate Customer’s rights to use Products and refund all amounts paid by Customer to Panzura attributable to Customers’ future usage or access to the Products hereunder. Panzura shall have no liability for, and the aforementioned Panzura obligations shall not apply to any claim based on or relating to (1) the use of the Products in combination with any other product, service or device, if such infringement claim would have been avoided by the use of the Products without such other product, service or device; (2) any modification or adaptation to the Products; (3) use of an Products other than as expressly authorized pursuant to this Agreement or pursuant to the Documentation; or (4) use of the Products by Customer after Panzura has made available to Customer a modified version or replacement for the Products or has provided notice to Customer that a claim of infringement has been or may be made with respect to the Product. The foregoing is the sole and exclusive remedy of Customer with respect to any infringement or claim of infringement of any third party intellectual property right.
16. Miscellaneous. This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts in the Northern District of California will have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals and understandings between them. Customer agrees not to export the Product(s) in violation of the laws and regulations of the United States or any other nation. In no event may Customer assign this Agreement or its rights and obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 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. Any notices or communication under this Agreement will be in writing and will be hand delivered, sent by registered or certified mail return receipt requested, by nationally-recognized express courier with a tracking system, or by confirmed facsimile transmission to the party receiving such communication, at the receiving party’s address set forth on the applicable Ordering Document, or such other address as a party may in the future specify to the other party.