Terms Of Service

This Panzura End User License Agreement (“Agreement”) is legally binding between the purchasing entity identified on the applicable ordering document (e.g., quote or purchase order) (“Customer”) and Panzura, LLC. (“Panzura”) regarding Customer’s purchase, evaluation, and/or license of the Product(s), 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.

  1. Definitions.

1.1. “Hardware Product(s)” means the hardware product(s), if any, that are described in the applicable ordering document.

1.2. “Customer Content” means any and all data, information, sound, text, images, and other content submitted by Customer to or through the Product(s).

1.3. “Documentation” means any user instructions, manuals, and online help files regarding the use of the Product(s) that are generally provided by Panzura in connection with the Product(s).

1.4. “Product(s)” means collectively, the Hardware Product(s) and the Software.

1.5. “Software” means Panzura’s commercially released machine-executable object code version of its proprietary software, as may be more fully described in the applicable ordering document.

  1. Software Licenses and Restrictions.

2.1. License. Subject to the terms and conditions of this Agreement, Panzura grants to Customer a non-exclusive, non-sublicensable and non-transferable license to (a) use the Software solely for its own internal needs; 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; (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. or (x) publish or disclose to any third party any performance or benchmark tests or analyses relating to the Product, except for internal use by the Customer.

  1. Infrastructure Requirements.Customer is responsible for acquiring, installing, configuring, maintaining, securing, and backing up all systems architecture, information technology infrastructure, networking (including Internet), and storage components that connect to the Product(s).
  2. Delivery and Title.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.
  3. Term and Termination.

5.1. Term of Agreement. This Agreement will be effective from the date of purchase of the Product(s) and shall end upon the earlier of: (i) the end of the License Term (if any) specified in the applicable ordering document (and any renewal thereof), or (ii) the termination of this Agreement pursuant to Section 5.3. 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.

5.2. Term of Software Licenses. The Software License Term shall be specified in the applicable ordering document for both software installed on the Hardware Products and for Software that is delivered standalone.

5.3. 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.

5.4. Effect of Termination. Upon termination of this Agreement, all rights granted to Customer with respect to term and subscription-based Software and Documentation will terminate, and Customer will immediately discontinue use of such Software and Documentation and any of Panzura’s Confidential Information. 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.

5.5. Survival. Section 2.2, 3, 5, 6, 8, and 10 through 15, inclusive shall survive the termination of this Agreement.

5.6 Term of Customer Content Storage. Customer acknowledges, understands and agrees to the storage of Customer Content and any other personal information in the United States. However, Customer also acknowledges, understands and agrees that Customer or other third parties that it collaborates with, may access the Products, including, but not limited to, applicable Customer Content, from outside of the United States (subject at all times to applicable law(s), regulation(s) and order(s)) and that nothing shall otherwise prohibit the processing of Customer Content or other information outside of the United States.

Panzura will at all times act in accordance with applicable laws, regulations and orders when determining the appropriate period for the storage and retention of Customer’s Content. Panzura’s standard retention period for all Customer Content will be no greater than ninety (90) days unless otherwise required by applicable laws, regulations and orders. Panzura will continue to store Customer’s Content until the applicable retention period has expired, at which time, it will be automatically and without notice entitled to purge and dispose of all Customer Content in the manner it deems necessary unless otherwise expressly agreed upon in writing by Customer and Panzura. Customer hereby acknowledges, understands and agrees that extended retention of Customer Content beyond the original ninety (90) day retention period will require additional payment of fees by Customer.

  1. Payment.Customer shall pay all amounts net thirty (30) days from the date of invoice. Product(s) will be invoiced at time of shipment. Any fees for professional services will be invoiced according to the SOW. All fees are nonrefundable. Customer will be responsible for all taxes resulting from the purchases other than taxes on Panzura’s net income.
  2. Limited Warranty.

7.1. Panzura warrants for a period of ninety (90) days from shipment 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.

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 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.

7.3. 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.

  1. WARRANTY DISCLAIMER.EXCEPT AS SET FORTH IN SECTION 7, 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 ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT THE PRODUCT(S) WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
  2. PRODUCT SUPPORT.

9.1. During Customer’s paid Product Support subscription, Panzura will provide Product Support to Customer at the applicable service level, as described at www.panzura.com/support/.

9.2. Panzura will have no obligation to provide Product Support for: (a) Hardware Products that have been opened or modified except by Panzura authorized personnel; (b) Hardware Products exposed to environmental conditions (temperature, power, humidity) outside the recommended guidelines; (c) improper installation of the Hardware Products or Software; (d) any modification of the Software not made by Panzura unless it is pre-approved in writing by Panzura; (e) any version of the Software running on any platform that is not supported by Panzura or (f) any Hardware Product or version of the Software that has reached its end of support life.

9.3. The initial Product Support period will be specified in the applicable ordering document from the effective date of this Agreement. Reinstatement of lapsed Product 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.

9.4. Panzura reserves the right to charge additional support fees at its then standard professional services rates for support services performed in connection with reported problems which are later determined to have been due to Customer error or third-party hardware or software. Any configuration or integration work must be separately quoted by Panzura’s professional services organization and agreed by the parties in writing.

  1. INDEMNIFICATION.

10.1 Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against Customer and pay any award or damages finally assessed against Customer in such suits or proceedings, insofar as the same are based on any third party claim that the Product(s) or any parts thereof furnished under this Agreement constitute an infringement in the United States of any United States patent, copyright trade secret or other intellectual property right of a third party; provided, however, that Customer (i) gives immediate written notice to Panzura of the institution of the suit or proceedings, (ii) gives Panzura sole control of the defense and settlement of such suits or proceedings, and (iii) gives Panzura all needed information, assistance, and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of the Product(s) in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (b) any use of the Product(s) that is not their intended use; or (c) any modification of any Product(s) by anybody other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for Customer the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

10.2 Customer agrees to indemnify, defend, and hold Panzura, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of the Product(s) or Customer Content, including without limitation any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive.

  1. LIMITATION OF LIABILITY.PANZURA’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) 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.

  1. 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. 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.
  2. Proprietary Rights.The Product(s) 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, improvements, 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.
  3. 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.
  4. 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 Santa Clara County, 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. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Customer’s form of purchase order, acknowledgment or other business forms notwithstanding Panzura’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. 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. Panzura shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. 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.

Updated 28 October, 2021

This Panzura Data Services End User License Agreement (“Agreement” or “EULA”) is legally binding between the purchasing entity identified on the applicable ordering document (e.g., quote or purchase order) (“Customer”) and Panzura, LLC (“Panzura”) regarding Customer’s purchase, evaluation, and/or license of Panzura Data Services (“PDS”). 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.

By using, accessing or browsing PDS, including, but not limited to, any PDS related applications, software, websites or other properties owned or operated by Panzura, or by registering for a PDS account, Customer agrees to be bound by all of the terms set forth in this EULA.

  1. DEFINITIONS.

1.1.“Content” refers to all data, information and material that Customer uploads into and stores on its PDS account. Customer acknowledges, understands and agrees that Panzura does not control, verify, or endorse any of the Content and that Customer is at all times solely responsible and liable for: (a) all Content, including, but not limited to, all Content that Customer places in its PDS account and shares through PDS; and (b) making sure that Customer has all the rights, including but not limited to, disclosure rights, it needs to the Content. Additionally, Customer hereby represents, warrants and covenants that in its storing, using and/or transmitting of Content Customer will not violate any terms and conditions set forth in this EULA or any applicable laws. Furthermore, Customer hereby agrees to provide Panzura, as well as Panzura’s affiliates, subsidiaries, executives, officers, directors, employees, contractors, agents, representatives, advisors and service providers acting on Panzura’s behalf, the right to transmit, process, use and disclose Content and other information of Customer’s which Panzura obtains as part of its use of PDS, but only: (i) as necessary, in the discretion of Panzura, for Panzura to provide PDS; (ii) as otherwise permitted, in the discretion of Panzura, by this EULA; (iii) as otherwise required, in the discretion of Panzura, by applicable law(s), regulation(s) or order(s); or (iv) as otherwise needed, in the discretion of Panzura, to respond to an emergency.

1.2 “Documentation” means any user instructions, manuals, and online help files regarding the use of PDS that are generally provided by Panzura in connection with PDS.

1.3. “Panzura Data Services” means Panzura’s cloudbased data management platform owned and operated by Panzura.

  1. PDS LICENSES AND RESTRICTIONS.

2.1. License. Subject to the terms and conditions of this Agreement, Panzura grants to Customer a non-exclusive, non-sublicensable and non-transferable license to (a) use PDS solely for its own internal needs; and (b) use the Documentation in connection with the permitted use of PDS.

2.2. Restrictions and Acceptable Use Provisions. Customer will not: (i) copy or reproduce PDS; (ii) modify or create any derivative works of PDS; (iii) decompile, disassemble, or reverse engineer PDS; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to PDS; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in PDS; (vi) provide access to or disclose PDS to any third party, or use PDS to create or provide any offering or service, whether or not it is similar or competitive to PDS, 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 PDS; (viii) use PDS for any unlawful purpose; (ix) use PDS 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; or (x) publish or disclose to any third party any performance or benchmark tests or analyses relating to the Product, except for internal use by the Customer.

In order to operate and provide PDS, Panzura collects certain data and information of or about Customer. Panzura collects, stores, retains, uses, protects and purges that data and information as described in Panzura’s Privacy Policy located at https://panzura.com/privacy-policy/ (“Privacy Policy”). Customer acknowledges, understands and agrees that its use of PDS is at all times subject to the Privacy Policy. Customer also acknowledges, understands and agrees that its use of PDS shall at times be subject to, in accordance with, the terms and conditions set forth in Panzura’s Acceptable Use Provisions located in this Section 2.2 of the Agreement (“Acceptable Use Provisions”).

2.3 Copyright Complaints and Removal Policy.

Panzura respects the intellectual property of others and will respond to notices of alleged copyright infringement that comply, in the discretion of Panzura, with applicable law(s). Panzura reserves the right to delete or disable Content alleged to violate copyright laws or this EULA and also reserves the right to terminate the PDS account(s) of any violators.

  1. INFRASTRUCTURE REQUIREMENTS.Customer is responsible for acquiring, installing, configuring, maintaining, securing, and backing up all systems architecture, information technology infrastructure, networking (including Internet), and storage components that connect to PDS. In order to maintain critical PDS infrastructure, Customer hereby expressly consents to updates Panzura may install, at its sole discretion, from time to time with respect to the PDS Plugin on CloudFS nodes that run in Customer’s environment.
  2. PDS ACCOUNT. Certain aspects of PDS may require Customer and individual users within Customer’s organization to obtain a PDS account by completing a registration form and designating a user ID and password. When registering for a PDS account, Customer and its individual users must: (a) provide true, current and complete information about itself on the registration form; and (b) maintain such information so it continues to be true, current and complete. Customer is entirely responsible for all materials, data and information that it and its individual users upload, post or otherwise transmit via PDS and, unless otherwise expressly agreed herein, Panzura shall have no responsibility or liability with respect to the same. Customer’s individual users may only use their PDS account and Customer shall at all times remain solely responsible and liable for its PDS account. If Customer at any time becomes aware of any unauthorized use of PDS or its PDS account, Customer shall immediately contact Panzura Support at support@panzura.com.

By registering with Panzura or signing up for PDS and/or a PDS account, Customer acknowledges, understands and agrees, on behalf of itself and its individual users, that Panzura may send Customer and its individual users, via email communication or otherwise, information regarding PDS and other Panzura products and/or services, including, but not limited to, any of the following: (a) notices about Customer’s use of PDS, such as notices of violations of use; (b) updates to PDS and new features or products; and (c) promotional information and materials regarding Panzura’s products and services. Customer and its individual users may review the settings in the respective accounts to control the messages it receives from Panzura and, if Customer and its individual users no longer wish to receive messages of the aforementioned nature or variety from Panzura, may unsubscribe by following the instructions in the applicable message.

Notices emailed to Customer or its individual users will be considered given and received when the email is sent. If Customer does not consent to receive notices (other than promotional materials) electronically, it must stop using PDS immediately.

  1. TERM, TERMINATION AND UPDATES.

5.1. Term of Agreement. This Agreement will be effective from the date of purchase of PDS and shall end upon the earlier of: (i) the end of the License Term (if any) specified in the applicable ordering document (and any renewal thereof), or (ii) the termination of this Agreement pursuant to Section 5.3.

5.2. Term of PDS Licenses. The PDS License Term shall be specified in the applicable ordering document.

5.3. 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.

5.4. Effect of Termination. Upon termination of this Agreement, all rights granted to Customer with respect to PDS will terminate, and Customer will immediately discontinue use of PDS and any of Panzura’s Confidential Information. Customer will certify in writing to Panzura within thirty (30) days of the applicable termination that all Confidential Information has been returned or destroyed in accordance with Panzura’s instructions and expectations (as determined in the sole discretion of Panzura).

5.5 Suspension and Termination of PDS. Panzura reserves the right to suspend or terminate Customer’s access to PDS and/or Customer’s PDS account at any time in its sole discretion. Customer hereby acknowledges, understands and agrees that in the event Customer’s PDS account is suspended or terminated, it may no longer have access to the Content that is stored using PDS and/or otherwise contained in its PDS account.

Upon termination Customer may request access to its Content, which Panzura will make available, except in cases where Panzura has terminated Customer’s account due to Customer’s violation of this EULA. Customer must make such a request by doing so in a writing delivered to Panzura at legal@panzura.com within fourteen (14) days following the applicable termination, and Customer’s failure to deliver such written request within the aforementioned timeline may automatically result in any Content being purged by Panzura and being unretrievable thereafter.

5.6 Term of Content Storage. PDS is provided from the United States. By using and accessing PDS, Customer acknowledges, understands and agrees to the storage of Content and any other personal information in the United States. However, Customer also acknowledges, understands and agrees that Customer or other third parties that it collaborates with, may access PDS, including, but not limited to, applicable Content, from outside of the United States (subject at all times to applicable law(s), regulation(s) and order(s)) and that nothing shall otherwise prohibit the processing of Content or other information outside of the United States.

Panzura will at all times act in accordance with applicable laws, regulations and orders when determining the appropriate period for the storage and retention of Customer’s Content. Panzura’s standard retention period for all Content will be no greater than ninety (90) days unless otherwise required by applicable laws, regulations and orders. Panzura will continue to store Customer’s Content until the applicable retention period has expired, at which time, it will be automatically and without notice entitled to purge and dispose of all Content in the manner it deems necessary unless otherwise expressly agreed upon in writing by Customer and Panzura. Customer hereby acknowledges, understands and agrees that extended retention of Content beyond the original ninety (90) day retention period will require additional payment of fees by Customer.

 

5.7 UPDATES TO PDS. Customer hereby acknowledges, understands and agrees that Panzura may at any time and in its sole discretion make any changes, updates or enhancements to PDS that it deems necessary or otherwise desirable. Customer also hereby acknowledges, understands and agrees that Panzura may at any time and in its sole discretion add or remove any functionalities or features of PDS or suspend or stop, temporarily or permanently, PDS altogether. In order to maintain compatibility between PDS and CloudFS nodes running in the customer environment, Customer hereby expressly consents to updates Panzura may install, at its sole discretion, from time to time with respect to the PDS Plugin on CloudFS nodes that run in Customer’s environment.

 

5.8. Survival. Section 2.2, 2.3, 3, 4, 5, 6, 7, 9, 10, 11, 12, 15, 16 and 17 shall survive the termination of this Agreement.  

  1. PAYMENT.Customer shall pay all amounts net thirty (30) days from the date of invoice. PDS will be invoiced at time of shipment. Fees for term-based or subscription PDS licenses and Product Support will be invoiced for all years purchased and paid at the beginning of the period. Any fees for professional services will be invoiced according to the SOW. All fees are nonrefundable. Customer will be responsible for all taxes resulting from the purchases other than taxes on Panzura’s net income.
  2. NO WARRANTY OR CONDITIONS. PANZURA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO PDS AND ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT PDS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
  3. PRODUCT SUPPORT.

8.1. During Customer’s paid Product Support subscription, Panzura will provide Product Support to Customer at the applicable service level, as described at www.panzura.com/support/.

8.2. Panzura will have no obligation to provide Product Support for any version of PDS running on any platform that is not supported by Panzura or any version of PDS that has reached its end of support life.

8.3. The initial Product Support period will be specified in the applicable ordering document from the effective date of this Agreement. Reinstatement of lapsed Product 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.

8.4. Panzura reserves the right to charge additional support fees at its then standard professional services rates for support services performed in connection with reported problems which are later determined to have been due to Customer error or third-party hardware or software. Any configuration or integration work must be separately quoted by Panzura’s professional services organization and agreed by the parties in writing.

  1. INDEMNIFICATION.

9.1 Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against Customer and pay any award or damages finally assessed against Customer in such suits or proceedings, insofar as the same are based on any third party claim that PDS or any parts thereof furnished under this Agreement constitute an infringement in the United States of any United States patent, copyright trade secret or other intellectual property right of a third party; provided, however, that Customer (i) gives immediate written notice to Panzura of the institution of the suit or proceedings, (ii) gives Panzura sole control of the defense and settlement of such suits or proceedings, and (iii) gives Panzura all needed information, assistance, and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of PDS in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (b) any use of PDS that is not its intended use; or (c) any modification of PDS by anybody other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for Customer the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

9.2 Customer agrees to indemnify, defend, and hold Panzura, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of PDS or Customer Content, including without limitation any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive.

  1. LIMITATION OF LIABILITY.PANZURA’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) 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.

PDS IS 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.

PANZURA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO PDS AND ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT PDS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

  1. 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. Without limiting the foregoing, PDS, its 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.
  2. PROPRIETARY RIGHTS.PDS contains Panzura’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. Panzura reserves all right, title and interest to PDS, including without limitation any modifications, enhancements, improvements, 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.
  3. PLATFORM PRODUCT USE SPECIFIC LICENSE AND TERMS. If Customer purchases a license to use any of the Platform Products, the following additional terms apply to Customer:

“Platform Products” are the Panzura API(s) (defined as an application-programming interface used by Customer to access functionality provided by Panzura) that provide programmatic access to the Panzura Service Platform and any additional Platform Product features and functionalities. The Platform Products include certain features that permit a user to view, search and analyze content if set forth in Customer’s order.

Customer agrees to only incorporate the API into the Platform Applications (applications used by or on behalf of Customer that use the API for the purposes of accessing the Panzura service) for the sole purpose of accessing certain functionality subscribed to by Customer, solely through the API and associated tools and services.

Customer will ensure that its subscription and usage of the Platform Products is at all times in conformance with the Platform Use Limits, this EULA and applicable law. Platform Use Limits shall be defined as the amount of managed storage within Data Services that was purchased for Customer’s account. This number can include the managed capacity on the Panzura CloudFS system, subscribed to by Customer, and/or the total max capacity of Customer’s third-party storage device(s). If Customer exceeds its subscription or Platform Use Limits, additional fees will be due and/or reasonable restrictions may be placed on its account until any such excess usage is adequately eliminated by Customer.

Customer may not co-brand any Platform Products or use any Panzura trademarks, logos, or other Panzura marks to promote and market the Platform Products without Panzura’s prior written consent.

Customer will not, and will make sure that the Platform Application does not and Customer will not permit use of the Platform Application: (a) to violate this EULA; (b) to perform hidden activities without Platform Application User consent (such as downloading components or other software); (c) that may alter a Platform Application User’s system without permission from the Platform Application User; (d) impersonate, or misrepresent an affiliation with, any person or entity; (e) use in any manner not authorized by a Platform Application User; except as otherwise authorized by a Platform Application User with respect to such Platform Application User’s Content; (f) mine or analyze any Content transmitted to, retrieved from or stored in PDS (including, but not limited to, through spiders, robots, crawlers, data mining tools, scrapers, or other automated means, or services employing any such means); (g) circumvent any security measures or content filtering devices; (h) use or affect the Platform Products in any manner that could damage, disable, overburden or impair the Platform Products (including, but not limited to, flooding the Platform Products with an excessive amount of data or content); or (i) permit use in connection with any purposes or intended application which involves risks or dangers that could lead to death, serious bodily injury, severe physical or property damage, or use for purposes that otherwise require significant safety precautions (e.g. uses of the Platform Products in connection with operation of emergency services, air traffic control, mass transport systems, or nuclear facilities).

  1. THIRD PARTY SERVICES. Panzura may make available to Customer optional third-party applications, services or products, for use in connection with PDS (“Third-Party Products”). These Third-Party Products are not necessary for the use of PDS, and any exchange of any information, license, payments, etc. between Customer and the applicable third party provider of the applicable Third-Party Product(s), is solely between Customer and the applicable third party provider of the applicable Third-Party Product(s). Panzura makes no representations or warranties of any kind (and expressly disclaims any and all of the same) and assumes no liability of any kind for Customer’s use of such Third-Party Products.

Part of PDS (including Platform Products and Consulting Services) may incorporate and consist of software components provided by third parties that are subject to open-source copyright license agreements (“Open Source Components”). Customer’s use of the Open Source Components will be governed by and subject to the applicable open source license under with the Open Source Components are distributed. Customer agrees that it will be bound by any and all such license agreements. Any Open Source Components provided with or contained in PDS is provided AS-IS and is without any warranty of any kind.

  1. DATA PROTECTION. Each party shall comply with its respective obligations under applicable data protection laws. Neither party shall do any act that puts the other party in breach of its obligations under this Section, nor shall anything contained in this EULA be deemed to prevent any party from taking any action it reasonably deems necessary to comply with data protection laws. Customer agrees that during the course of its use of PDS under this EULA: (i) with respect to data Customer collects, accesses or otherwise uses, Customer alone shall determine the purpose for which and the manner in which such data are or will be processed; and (ii) Customer is the data controller with respect to all such data Customer may process. Panzura shall at all times act in accordance with the requirements of data protection laws and Customer shall fully indemnify and hold Panzura harmless against any loss, damages, liability, and costs (including attorney’s fees) incurred by Panzura as a result of any breach of data protection laws by Customer.

  1. CHANGES TO THIS EULA. Panzura at all times reserves the right to at any time modify this EULA, including, but not limited to, any of the terms and conditions set forth herein, at its sole discretion. The most current version of this EULA will at all times be placed at www.panzura.com/eula. Customer’s continued use of PDS after Panzura publishes an updated version of this EULA, if at all, shall be deemed as Customer’s acceptance of, and consent to, the updated version of this EULA.

Any terms or conditions appearing in any purchase order, acknowledgement, or confirmation that are different from or in addition to those specified in this EULA will not at any time be binding upon Panzura or any of its affiliates or subsidiaries unless otherwise expressly agreed in writing by Panzura.

  1. 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 Santa Clara County, 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. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Customer’s form of purchase order, acknowledgment or other business forms notwithstanding Panzura’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. Customer agrees not to export PDS 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. Panzura shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. 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, by email to legal@panzura.com, 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.

 

Updated 4 November 2021

END USER LICENSE AGREEMENT 

This End User License Agreement (“EULA”), effective as of the earlier date of the date set forth on the applicable ordering document or the date Customer (as defined below) accepts this EULA via any of the means contemplated in Section 2 hereof, is entered into and legally binding by and between Panzura, LLC (“Panzura”) and the purchasing entity identified on the applicable ordering document (“Customer”).

1. Definitions.

1.1. “Hardware Product(s)” means the hardware product(s), if any, that are described in the applicable ordering document.

1.2. “Software” means Panzura’s commercially released machine-executable object code version of its proprietary software referenced, and as may be more fully described, in the applicable ordering document.

1.3. “Product(s)” means collectively, the Hardware Product(s) and the Software.

1.4. “Documentation” means any user instructions, manuals, and online help files regarding the use of the Product(s) that are provided to Customer by or on behalf of Panzura.

1.5. “Customer Content” means any data, information, sound, text, images, and other content submitted by Customer to or through the Product(s).

1.6. The term “You” means Customer.

2. Agreement to Terms. PLEASE READ THIS EULA CAREFULLY. BY CHECKING THE “ACCEPT” BUTTON BELOW, OPENING THE PACKAGE, DOWNLOADING ANY SOFTWARE, OR USING ANY HARDWARE PRODUCT(S) AND/OR SOFTWARE, YOU ARE EXPRESSLY ACKNOWLEDGING AND AGREEING THAT: (a) YOU PURCHASED THE PRODUCT(S) FROM AN APPROVED SOURCE; (b) YOU FULLY UNDERSTAND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA; AND (c) YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITONS SET FORTH IN THIS EULA. FOR PURPOSES OF THIS EULA, AN “APPROVED SOURCE” MEANS (a) PANZURA; OR (b) A DISTRIBUTOR, RESELLER, OR SYSTEMS INTEGRATOR AUTHORIZED BY PANZURA TO DISTRIBUTE AND/OR RESELL THE APPLICABLE PANZURA HARDWARE OR SOFTWARE TO END USERS WITHIN CUSTOMER’S TERRIITORY. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS EULA, YOU SHALL: (a) IMMEDIATELY NOTIFY PANZURA OF THE SAME IN WRITING; (b) IMMEDIATELY CLICK THE “DO NOT ACCEPT” BUTTON (WHICH SHOULD DISCONTINUE THE INSTALLATION PROCESS); (c) IMMEDIATELY RETURN THE PRODUCT TO THE PLACE OF PURCHASE (IF APPLICABLE); AND (d) NOT DOWNLOAD THE APPLICABLE PRODUCT(S). IF CUSTOMER IS A CORPORATION OR OTHER FORM OF LEGAL ENTITY AND THIS THIS EULA IS BEING ENTERED INTO ON CUSTOMER’S BEHALF BY AN INDIVIDUAL, THE INDIVIDUAL ENTERING INTO THIS EULA ON CUSTOMER’S BEHALF HEREBY EXPRESSLY REPRESENTS AND WARRANTS THAT HE/SHE HAS THE FULL AUTHORITY TO ENTER INTO THIS EULA ON CUSTOMER’S BEHALF AND THE FULL AUTHORITY TO BIND CUSTOMER TO THIS EULA AND ALL TERMS AND CONDITIONS SET FORTH IN THIS EULA (INCLUDING, BUT NOT LIMITED TO, ALL OBLIGATIONS OF CUSTOMER CONTEMPLATED IN THIS EULA).

3. Software Licenses and Restrictions.

3.1. Subject to the terms and conditions of this EULA, Panzura grants to Customer a non-exclusive, non-sublicensable, and non-transferable license to: (a) use the Software, including any agreed upgrades, updates and/or bug fixes thereto or modified versions thereof, solely for its own internal business needs; and (b) use the Documentation only in connection with the permitted use of the Product(s) (as such permitted use is determined by Panzura in its sole discretion). This license is personal to Customer and is restricted to use consistent with the total number of authorized sites, servers, features, functions, ports, and/or tags for which the Customer has, in accordance with the applicable ordering document, fully and finally paid to the applicable Approved Source all applicable license fees and other amounts.

3.2. Customer shall not: (a) copy or reproduce any Product (except as permitted under applicable copyright law with respect to back-up or archival copies); (b) modify or create any derivative works of any Product; (c) decompile, disassemble, or reverse engineer (or permit, directly or indirectly, any third party, including, but not limited to, any of Customer’s employees, contractors, officers, directors, members, managers, partners, shareholders, agents, advisors or representatives, to decompile, disassemble, or reverse engineer) any Product, whether to establish the source code thereof or otherwise; (d) sell, distribute, disclose, market, rent, lease, or transfer to any third party any portion of any Product, including, but not limited to, any portion of any Software, or use any Product, including, but not limited to, any Software, in any service bureau arrangement, facility management or third party training; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in or on any Product; (f) provide access to or disclose any Product to any third party; (g) use any Product to create or provide any offering or service, whether or not it is similar or competitive to any Product, including, but not limited to, processing third party data files as a consultant or service provider; (h) extract or use any software or content that is furnished by or on behalf of Panzura except as part of the applicable Product(s); (i) use any Product for any unlawful purpose; (j) use any Product in connection with the storage or transmission of infringing, libellous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights; (k) publish or disclose to any third party any performance or benchmark tests or analyses relating to any Product, except for internal use by Customer; or (l) make error corrections to any Product, including, but not limited to, any Software, or permit, directly or indirectly, any third party to do so.

4. Upgrades and Copies. Notwithstanding any other provision set forth in this EULA, Panzura and Customer hereby expressly acknowledge and agree that: (a) Customer has no license or right to make or use any additional copies or upgrades of any Product(s) unless Customer, at the time of making or acquiring such copy or upgrade, already holds a valid license to the original Software and has fully and finally paid to the applicable Approved Source all applicable fees (as determined by Panzura in its sole discretion) for the upgrade or additional copies; (b) use of upgrades is limited to Product(s) supplied to Customer by an Approved Source for which Customer is the original end user or purchaser or otherwise, as determined by Panzura in its sole discretion, holds a valid license to use the applicable Product(s) which is/are being upgraded; and (c) the making and use of additional copies is limited to necessary backup purposes only (as determined by Panzura in its sole discretion). In reproducing any Software under applicable copyright law with respect to back-up or archival copies, Customer shall reproduce and include all proprietary, confidentiality, copyright, patent, and trademark notices and legends of Panzura and its licensors that are contained in and on such Software.

Delivery and Title. To the extent applicable, 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.

6. Term and Termination.
6.1. This EULA will be effective from the date of purchase of the applicable Product(s) and shall end upon the earlier of: (a) the end of the License Term specified in the applicable ordering document, if any, and any renewal thereof; or (b) the termination of this EULA pursuant to Section 6.2. In the case of an evaluation of any Product(s), this EULA will terminate automatically and without notice terminate at the conclusion of the evaluation period as stated on the applicable ordering document, unless Customer purchases and/or licenses the applicable Product(s) prior to the conclusion of the evaluation period.

6.2. This EULA may be terminated for cause by either party in the event that the other party commits a material breach of this EULA and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate. Notwithstanding the foregoing, Customer’s breach of its obligations arising under Section 3 (Software License and Restrictions) or Section 13 (Confidentiality) shall be deemed a material breach of this EULA that cannot be cured and shall allow Panzura to immediately terminate this EULA. Additionally, this EULA may be terminated without cause by Panzura upon no less than ninety (90) days written notice to Customer.

6.3. Upon termination of this EULA, all rights granted to Customer will terminate with respect to all Product(s), including, but not limited to, all applicable Software, and Documentation, and Customer will immediately discontinue use of all Product(s), including, but not limited to, all Software, Documentation and all of Panzura’s Confidential Information. Upon request by Panzura, Customer will within seven (7) days thereof certify in writing to Panzura that all Product(s), including, but not limited to, all Software, as well as any and all copies thereof and any and all Confidential Information of Panzura, have either been returned to Panzura or destroyed in accordance with Panzura’s written instructions. In addition, if title has not passed to Customer with respect to any Hardware Product(s), if any, Customer will, at its sole expense, immediately package and return any and all such Hardware Product(s) to Panzura in accordance with Panzura’s written instructions.

6.4. Sections 3, 4, 6, 8, 9, 11, 12, 13, 14, 16, 18, and 19 shall survive the termination of this EULA.

Payment. Unless otherwise set forth in an applicable ordering document, Customer shall pay all amounts due net thirty (30) days from the date of invoice. All fees are nonrefundable. Customer will be responsible for all taxes associated with or resulting from the purchases or licensing of any Product(s) other than taxes on Panzura’s or an Authorized Source’s net income.

Limited Warranty.

8.1. Panzura warrants for a period of ninety (90) days from the date of shipment or other applicable form of delivery that: (a) the Hardware Product(s), if any, will be free from defects in materials and workmanship; and (b) the applicable Software will substantially conform to the applicable Documentation.

8.2. The exclusive liability of Panzura, and the sole remedy of Customer, with respect to any breach of any of the above-described warranties shall be limited to Panzura replacing or repairing, or, at Panzura’s option, refunding the purchase price of the Product(s) to which the breach of warranty applies. With respect to Software, repair or replacement is limited to providing maintenance releases of the applicable 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 EULA do not apply to Open Source Components.

Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE, PANZURA, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO ANY PRODUCT(S) AND DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS EULA OR OTHERWISE ASSOCIATED WITH ANY PRODUCT(S), INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL WARRANTIES THAT THE PRODUCT(S) WILL BE UNINTERRUPTED AND/OR ERROR FREE, AND ANY AND ALL WARRANTIES THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, THE SOFTWARE, IS NOT DESIGNED FOR ANY CRITICAL APPLICATIONS AND THEREFORE PANZURA PROVIDES NO WARRANTY THAT ANY PRODUCT(S) IS/ARE FIT FOR CRITICAL APPLICATIONS. “CRITICAL APPLICATIONS” MEANS THE LIFE SUPPORT SYSTEMS OR THE LIFE SUPPORT MARKET, MEDICAL APPLICATIONS, CRITICAL CARE APPLICATIONS, CONNECTIONS TO IMPLANTED MEDICAL DEVICES, COMMERCIAL TRANSPORTATION OR AVIATION, NUCLEAR FACILITIES OR SYSTEMS, OR ANY OTHER APPLICATIONS WHERE PRODUCT FAILURE COULD LEAD TO INJURY TO PERSONS, LOSS OF LIFE, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. PANZURA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF ANY PRODUCT(S) IN ANY CRITICAL APPLICATIONS.
Product Support.

10.1. During Customer’s paid Product Support subscription period (as set forth in the applicable ordering document or otherwise agreed in writing by Panzura), Panzura will provide Product support to Customer at the applicable service level (as determined by Panzura in its sole discretion), as described at www.panzura.com/support/.

10.2. Panzura will have no obligation to provide Product support for: (a) Hardware Products that have been opened or modified except by Panzura authorized personnel; (b) Hardware Products exposed to environmental conditions (temperature, power, humidity) outside the recommended guidelines; (c) improper installation of any Hardware Product(s) or Software; (d) any modification of any Software not made by Panzura or otherwise expressly pre-approved in writing by Panzura; (e) any version of any Software running on any platform that is not supported by Panzura; or (f) any Hardware Product or version of any Software that has reached its end of support life (as determined by Panzura in its sole discretion).

10.3. Unless otherwise agreed in writing by Panzura, the applicable Product Support subscription period will be specified in the applicable ordering document. Reinstatement of lapsed Product 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.

10.4. Panzura reserves the right to charge additional Product support fees at its then standard professional services rates for Product support services performed in connection with reported problems which are later determined to have been due to Customer error or any third-party hardware or software. Any configuration or integration work must be separately quoted by Panzura’s professional services organization and agreed by the parties in writing before Panzura will have any obligations with respect to the same.

Indemnification.

11.1. Panzura agrees that it will, at its own expense, defend all suits or proceedings instituted against Customer by any third party and pay any award or damages finally assessed against Customer in such third-party suits or proceedings insofar as the same are based on any third party claim that the Product(s) or any parts thereof furnished under this EULA constitute an infringement in the United States of any United States patent, copyright, or other intellectual property right of a third party; provided, however, that Customer gives Panzura: (a) immediate written notice of the institution of the suit or proceedings, (b) sole control of the defense and settlement of such suits or proceedings; and (c) all needed information, assistance and authority to enable Panzura to do so. Notwithstanding the foregoing, Panzura will not be responsible for, and the foregoing indemnity obligation shall not apply to: (x) any use of any Product(s) in combination with any other device, product, service, process, equipment, infrastructure or material not furnished by Panzura, (y) any use of any Product(s) that is outside their intended use; or (z) any modification of any Product(s) by any party other than Panzura. In the event that Panzura believes that any claim is likely to occur, Panzura may, at its sole option and expense, either (i) secure for Customer the right to continue using such item(s), (ii) replace such item(s) with non-infringing item(s), or (iii) require the return of such item(s) and refund the sums paid therefor. THE FOREGOING STATES PANZURA’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.

11.2. Customer agrees to indemnify, defend, and hold Panzura and its directors, officers, employees, and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including without limitation reasonable attorneys’ fees, arising out of or related to any Customer Content, including, without limitation, any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive, or any unauthorized use of any Product(s) by Customer or any of its employees, officers, directors, members, managers, partners, shareholders, contractors, agents, representatives, affiliates or subsidiaries. For purposes of this EULA, “unauthorized use” shall mean any use of any Product(s) that is not expressly authorized under the provisions set forth in this EULA or any use of any Product(s) that is not in strict accordance with the applicable Documentation.

Limitation of Liability. PANZURA’S TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT OF MONEY PAID FOR THE SPECIFIC PRODUCT(S) FROM WHICH THE CLAIM AROSE. IN NO EVENT WILL PANZURA BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, SECURITY BREACH, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT PANZURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. 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. Customer hereby expressly acknowledges and agrees that Panzura has set its prices for the Product(s) and entered into this EULA in reliance upon the disclaimers of warranty set forth in Section 9 of this EULA and the limitations of liability set forth in this Section 12 of this EULA, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

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, specifications, trade secrets, development plans, technical information, business forecasts, and strategies. Without limiting the foregoing, the Product(s) and the Documentation are the “Confidential Information” of Panzura. Each party agrees to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to any third parties, except as described below, not to use any Confidential Information except for the purposes of this EULA, and otherwise protect Confidential Information by using at least the same degree of care (and, in any event, not less than a reasonable degree of care) as it uses to protect its own proprietary information of similar importance . 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 EULA, and only if such employees and contractors are subject to a nondisclosure agreement that is at least as restrictive as this EULA. 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; or (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.

Proprietary Rights. The Product(s) and Documentation contain Panzura’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. There is no implied license, right, or interest granted to Customer in any copyright, patent, trade secret, trademark, invention, or other intellectual property right under this EULA, and Panzura reserves all proprietary rights not expressly granted herein.

Government Rights. 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 EULA with only those rights set forth herein. Accordingly, if the Customer is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions, and covenants contained in this EULA.

Export Restrictions. Customer agrees that it will not export or re-export any Product(s), any part thereof, or any process or service that is the direct byproduct of the Products (the foregoing collectively referred to as the “Restricted Components”), to any country, person or entity subject to U.S., E.U. or other applicable export restrictions (including but not limited to regulations from the Departments of Commerce, Treasury or Defense); and, to the extent consistent with this EULA, to obtain any necessary license or other authorization to export, re-export, or transfer Restricted Components. Customer specifically agrees not to export or re-export any of the Restricted Components: (a) to any country to which the U.S., E.U. or other applicable jurisdiction has embargoed or restricted the export of goods or services, which currently include but are not necessarily limited to Cuba, Iran, North Korea, Sudan and Syria, to the governments of these countries, wherever located, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (b) to any person or entity who Customer knows or may have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons or for missile-development/delivery purposes; or (c) to any person or entity who has been prohibited from participating in U.S. or applicable export transactions by any federal agency or department of the U.S. or other government. Customer warrants and represents that neither the U.S. Commerce Department, Bureau of Export Administration nor any other federal agency has suspended, revoked or denied its export privileges; or (iv) or to any person with knowledge or reason to know that they will export, re-export, or transfer the Products other than in compliance with the foregoing restrictions.

Security Responsibilities. Customer acknowledges and agrees that it is solely responsible for maintaining and protecting all aspects of any network, systems, and data (including any Personal Information) maintained by Customer. “Personal Information” means individually identifiable information from or about an individual consumer including, but not limited to: (a) a first and last name or first initial and last name; (b) a home or other physical address, which includes at least a street name and name of city or town; (c) an email address; (d) a telephone number; (e) a Social Security number; (f) credit and/or debit card information, including number, expiration date, security code, and/or track data; (g) date of birth; or (h) driver’s license number.

Panzura Suppliers and Licensors. Any release, disclaimer, or limitation of Panzura’s liability or damages pursuant to this EULA shall be construed, in addition to Panzura’s benefit, also to the benefit of Panzura’s suppliers, licensors, employees, and contractors and, without limiting any other defenses that such suppliers, licensors, employees and contractors may have. Customer hereby expressly agrees and covenants to release such third parties from liability or damages in accordance with such release, disclaimer, or limitation of liability or damages to the same extent that such provisions apply to Panzura. The Product(s), including, but not limited to, any Software, may include software licensed from third parties, and such third-party software may have additional restrictions specified in licenses included in the “Licenses” directory within the Product(s). Customer hereby expressly represents and warrants that is has read such other licenses in their entirety and fully agrees to be bound by their terms.

Governing Law/Dispute Resolution. This EULA will be governed by and construed under the laws of the State of California without regard to its conflict of law’s provisions. The federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue to adjudicate any dispute arising out of or related to this EULA. Notwithstanding the foregoing, Customer hereby expressly acknowledges and agrees that the breach or attempted breach of its obligations hereunder related to any Product(s) or Panzura’s Confidential Information shall cause irreparable injury to Panzura for which money damages would not be an adequate remedy and that in such event Panzura shall be entitled to equitable relief to protect its interests, including, but not limited to, injunctive relief, in any court of competent jurisdiction.

Entire Agreement. This EULA 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. No modification of or amendment to this EULA, nor any waiver of any rights under this EULA, will be effective unless set forth in writing signed by authorized representatives of both parties hereto. Customer hereby expressly acknowledges and agrees that, without limiting the generality of the foregoing, this EULA wholly supersedes the terms of any Customer form of purchase order, acknowledgment, or other business forms notwithstanding Panzura’s acceptance or acknowledgment thereof or to any of the same and that no so such Customer form of purchase order, acknowledgment or other business forms shall have any force or effect unless otherwise expressly agreed in writing by Panzura via a written amendment to this EULA.

Assignment. Customer may not assign this EULA or any of its rights and/or obligations under this EULA without Panzura’s prior written consent. Panzura shall have the right to assign this EULA and/or any of its rights and/or obligations under this EULA to any of its affiliates or subsidiaries or to any successor to its business or assets to which this EULA relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

Severability. If any provision of this EULA is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this EULA will otherwise remain in full force and effect and enforceable.

Waiver. The failure of either party to enforce its rights under this EULA at any time for any period will not be construed as a waiver of such rights.

Notices. Any notices or communication under this EULA will be in writing and will be either (a) hand delivered, (b) sent by registered or certified mail return receipt requested, or (c) sent by nationally recognized express courier to 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.

Customer Records. Upon reasonable notice, Panzura may conduct a reasonable audit of Customer’s software environment and relevant records to confirm Customer’s use of Product(s), including, but not limited to, any Software, is in accordance with the terms and conditions of this EULA. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with Customer’s business activities. Customer shall reasonably cooperate in any such audit. In the event such audit discloses non-compliance with this EULA, Customer shall promptly pay to Panzura the appropriate license fees (as determined by Panzura in its sole discretion), plus the reasonable cost of conducting the audit.