Tanzu - Twistlock
24434
14 May 2024
14 May 2024
TWISTLOCK INC.
END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY ("LICENSEE") AND TWISTLOCK, INC., A DELAWARE CORPORATION WITH ITS PRINCIPAL PLACE AT 411 NW PARK AVE, SUITE 500, PORTLAND OR 97209, ON BEHALF OF ITSELF AND ITS AFFILIATES (“TWISTLOCK”). TWISTLOCK AND LICENSEE MAY BE REFERRED TO IN THIS AGREEMENT, INDIVIDUALLY, AS “PARTY” AND, COLLECTIVELY, AS “PARTIES.”
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING TWISTLOCK'S SOFTWARE FOR THE PROTECTION OF DATA CONTAINERS. THE TERM "SOFTWARE" INCLUDES (I) TWISTLOCK'S SOFTWARE, (II) RELATED DOCUMENTATION, (III) ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES THERETO, AND (IV) SOFTWARE MAINTENANCE (AS DEFINED BELOW) ONLY FOR PAYING LICENSEES.
LICENSEE'S USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNLESS LICENSEE AND TWISTLOCK HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH PARTIES, WHICH EXPRESSLY SUPERSEDES THIS AGREEMENT.
BY DOWNLOADING, INSTALLING, OPERATING OR OTHERWISE USING THE SOFTWARE, LICENSEE EXPRESSLY AND EXPLICITLY ACCEPTS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT OR IS NOT WILLING TO BE BOUND BY IT, LICENSEE MUST NOT DOWNLOAD, INSTALL, OPERATE OR OTHERWISE USE THE SOFTWARE AND LICENSEE MUST PROMPTLY UNINSTALL THE SOFTWARE, AND ANY PART THEREOF, FROM ITS SYSTEM.
1. LICENSE GRANT.
1.1. Subject to terms and conditions of this Agreement, during the applicable Subscription Term (as defined below) Twistlock hereby grants to Licensee, and Licensee accepts, a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license to make internal use of the Software for the regular and standard purposes the Software was designed for, all as authorized in this Agreement. The term “Software” includes the Software, compilation of data, or visual display resulting from the operation of the Software, and any associated materials, specifications and documentation.
1.2. The Software is licensed, not sold. Other than the rights expressly set forth in Section 1.1 above, no other right or interest whatsoever in or relating to the Software is transferred or granted to Licensee.
1.3. The Software should be installed and used in accordance with its documentation and the instructions of Twistlock. Except as expressly permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly (i) copy, reverse engineer, decompile, or disassemble the Software or any part of it or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, (ii) make derivative works, modify, convert, alter, change, manipulate, divide, part or revise the Software, or any part thereof, (iii) delete or in any manner remove or alter Twistlock’s trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices, nor copy the Software manual(s), documentation, or any written materials accompanying the Software; (iv) export the Software in violation of export administration regulations of the United States or any other country; (v) assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the Software in any service bureau arrangement, facility management or third party training, or otherwise share Licensee’s rights under this Agreement to any third party, except that Licensee may permit its affiliates to use the Software on Licensee’s behalf (provided, however that such affiliates will continue to be bound by the terms of this Agreement and Licensee shall remain liable for any breach of the terms of this Agreement by such affiliates); or (vi) disclose, publish or otherwise make publicly available any trade secrets contained within the Software or the results of any benchmarking of the Software, or use such results for Licensee's or for any third party's competing activities.
2. SUBSCRIPTION TERMS; SUBSCRIPTION FEES; SOFTWARE MAINTENENCE.
2.1. Subscription Terms. Each subscription Licensee purchases or otherwise obtains from Twistlock (a “Subscription”) entitles Licensee to use the Software during the applicable Subscription Terms under the terms and conditions set forth herein. To the extent Licensee purchased an enterprise Subscription, such Licensee shall be entitled to receive Software Maintenance (as defined below) during the Subscription Term. In this Agreement, “Subscription Term” means the initial twelve (12) month period following the Effective Date (defined below), or such shorter or longer period as may be specified upon purchase of Licensee’s Subscription and as approved by Twistlock. ANY PAYMENT TERMS CONTAINED HEREIN SHALL APPLY TO LICENSEES OF TWISTLOCK'S ENTERPRISE SUBSCRIPTION AND SHALL NOT APPLY TO LICENSEES OF TWISTLOCK'S DEVELOPER SUBSCRIPTION.
2.2. Each Subscription expires at the end of the applicable Subscription Term, unless renewed by Licensee. Licensee shall pay the fees for each Subscription as specified at the time of purchase of such Subscription from Twistlock. The Subscription fee for any additional Subscription will be according to Twistlock's then-current Subscription fee.
2.3. Unless otherwise expressly stated in the applicable purchase order, (i) all payments hereunder are quoted and shall be paid in United States Dollars, (ii) payment shall be made without any right or set-off or deduction and are irrevocable and nonrefundable, and (iii) all invoices are payable within thirty (30) days of the date of the invoice. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (a) the rate of one and a half percent (1.5%) per month; or (b) the highest amount permitted by applicable law.
2.4. All amounts payable under this Agreement are exclusive of sales, use, value-added, withholding, and other taxes and duties. Licensee will pay all taxes and duties assessed in connection with this Agreement by any authority, except for taxes payable on Twistlock's net income. If any such tax or duty has to be withheld or deducted from any payment under this Agreement, Licensee shall gross-up the payment under this Agreement by such amount as shall ensure that after such withholding or deduction Twistlock shall have received an amount equal to the payment otherwise required.
2.5. During the relevant Subscription Term and in consideration for the full payment of the Subscription fees by the Licensee, as shall be detailed in any statement of work or purchase order issued by Twistlock, Twistlock shall provide the Licensee with maintenance support as detailed in Exhibit A ("Software Maintenance" and the “SLA”, respectively).
3. TWISTLOCK'S RIGHTS.
3.1. For the purpose of this Agreement, “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law (including moral rights), trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, modifications or corrections thereto, including all derivative works thereof, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
3.2. Licensee further acknowledges and agrees that between Licensee and Twistlock, all right, title, and interest in and regarding the Software, including associated Intellectual Property Rights, are and shall remain with Twistlock, its affiliates, subsidiaries and/or their respective suppliers and licensors.
3.3. If Licensee contacts Twistlock with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and Twistlock shall have an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the Software or any of its products or services.
4. THIRD PARTY COMPONENTS.
The Software is based on software which is developed and owned by Twistlock and/or its licensors. The Software may use or include third party software, files and components that are subject to open source and third party license terms ("Third Party Components"). The Licensee's right to use such Third Party Components as part of, or in connection with, the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be "open source" or "publicly available" software. A list of Third Party Components is available in the Software or its documentation (the "About Box") and will be updated from time to time (an updated About Box list can be found at Twistlock's website at www.twistlock.com). With respect to any licenses of Third Party Components that require the provision of the open source code of such Third Party Components, Licensee should contact Twistlock at: [email protected].
5. TERM; TERMINATION.
5.1. This Agreement is effective upon the earlier of (a) downloading, (b) operating/using or (c) installing, the Software by License (the “Effective Date”) and will remain in full force and effect during the applicable Subscription Term unless terminated in accordance with this Agreement.
5.2. Twistlock may terminate this Agreement immediately with no further action or notice upon the breach of any term of this Agreement (including without limitation, the obligations to pay all Subscription fees when due and payable) by the Licensee which is not cured with fifteen (15) business days following the delivery of written notice to Licensee.
5.3. A Party may terminate this Agreement for convenience, by providing the other Party with at least thirty (30) days prior written notice of cancellation.
5.4. Either party may terminate this Agreement if the other party: (i) ceases operation without a successor; or (ii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
5.5. Upon expiration or termination of this Agreement, the license granted herein will terminate and Licensee: (i) shall immediately cease to use the Software, (ii) shall pay to Twistlock any amounts owed to Twistlock under this Agreement before such expiration or termination; (iii) shall remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software and its documentation in Licensee’s possession or under Licensee’s control. Upon Twistlock’s request, Licensee shall within three (3) days certify destruction of, all full or partial copies of the Software, documentation and related materials provided by Twistlock.
5.6. The sections of this Agreement that, by their nature and content, must survive the termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive.
6. WARRANTY DISCLAIMER; LIMITED LIABILITY; IP INDEMNIFICATION.
6.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND TWISTLOCK DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE SOFTWARE'S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, TWISTLOCK AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND DISTRIBUTORS, EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, AND ALL CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, NON-INTERFERENCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. IN ADDITION, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, TWISTLOCK DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY TWISTLOCK WITH THE SOFTWARE (IF ANY), WILL BE FREE OF VULNERABILITY TO AN INTRUSION OR ATTACK.
6.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TWISTLOCK, ITS AFFILIATES, PARTNERS, SUPPLIERS DISTRIBUTORS AND/OR LICENSORS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO LICENSEE OR ANY THIRD PARTY, FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO THE INSTALLATION OF THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY TWISTLOCK (IF ANY) AND/OR ANY USE OF OR INABILITY TO USE THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY TWISTLOCK (IF ANY), EVEN IF TWISTLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3. EXCEPT AS SET FORTH IN SECTION 6.4 (IP INDEMNIFICATION), IN NO EVENT SHALL TWISTLOCK'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL PAYMENTS ACTUALLY MADE TO TWISTLOCK FOR THE SOFTWARE, IF ANY, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
6.4. IP Indemnification. Twistlock agrees to defend, at its expense, any third party action or suit brought against Licensee alleging that the Software infringes intellectual property rights of a third party, and Twistlock will pay any damages awarded in final judgment of a competent court against, or settled with, Licensee that are attributable to any such third party claim (“IP Infringement Claim”); provided that (i) Licensee notifies Twistlock promptly in writing of such IP Infringement Claim; and (ii) Licensee grants Twistlock sole authority to handle the defense or settlement of any such IP Infringement Claim and will provide Twistlock with all reasonable information and assistance, at Twistlock’s expense. Twistlock will not be bound by any settlement that Licensee enters into without Twistlock's prior written consent. If the Software becomes, or in Twistlock's opinion is likely to become, the subject of an IP Infringement Claim, then Twistlock may, at its sole option and expense (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Twistlock's reasonable efforts, Twistlock may accept return of the affected Software and refund prorated payments for such returned Software. Notwithstanding the foregoing, Twistlock shall have no responsibility for any claims resulting from or based on: (1) modifications to the Software made by a party other than Twistlock or its designee; (2) Licensee's failure to use updated or modified Software provided by Twistlock specifically to avoid infringement; or (3) combination or use of the Software with equipment, devices or software not supplied or authorized by Twistlock or not in accordance with Twistlock's instructions.
7. MISCELLANEOUS.
7.1. Compliance with Laws. Licensee shall be solely responsible to comply, at its own expense, with local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy (including any applicable laws relating to the collection of information from the Licensee's data subjects, and, as applicable, the obligation to register databases) and with all governmental approvals, licenses, permits and authorizations which may be required with regards to the Licensee's use of the Software.
7.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Good. Any legal action or proceeding relating to this Agreement shall be instituted in the competent courts of San Francisco or Santa Clara, California. The Parties agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees.
7.3. Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
7.4. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
7.5. Injunctive Relief. Since a breach by Licensee of any of the obligations or undertakings contained herein may result in irreparable and continuing damage to Twistlock for which there may be no adequate remedy at law, Licensee acknowledges and agrees that money damages will not be a sufficient remedy for any breach by Licensee of this Agreement, and therefore Twistlock shall be entitled, in addition to money damages, to seek specific performance and injunctive relief and any other appropriate equitable remedies for any such breach in any court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
7.6. Entire Agreement; Assignment. Licensee agrees that this Agreement is a complete and exclusive statement of the agreement between Licensee and Twistlock and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. This Agreement shall be binding upon and inure to the benefit of each party’s heirs and legal representatives. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other Party; provided that no consent shall be required for an assignment in connection with a merger, acquisition or other corporate combination, or the sale of all or substantially all of the assigning Party’s assets to which this Agreement relates. ]
EXHIBIT A
SERVICE LEVEL AGREEMENT (“SLA”)
This Service Level Agreement applies only to Twistlock's Enterprise users or other paying users.
Section 1 – Definitions
“Response Time”
is the time period between first detailed problem report and Licensor initial acknowledgement of the report.Premium Support – 24 hour maximum response time for any issue – detailed SLA’s below.
| Priority | Incident Description | Response Requirement | Repair Requirement |
|---|---|---|---|
| 1 | Critical: Application down, unable to use or severely impaired | 4 hour response time 24 hour fix or workaround that maintains similar performance. | 24x7 coverage until workaround provided Must fix in next maintenance release. |
| 2 | Major: Important feature not available, intermittent crash | 8 hour response time | 72 hour workaround or agreed to action plan in place. Must fix in next major release. |
| 3 | Minor: Cosmetic in nature, obscure, not serious but worth noting, application is functioning | 24 hour response time | Resolution added to next major release |
| 4 | Enhancement Request | 24 hour response time | Added to roadmap for upcoming release |