END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN CHEF SOFTWARE INC., LOCATED AT 619 WESTERN AVENUE, SUITE 400, SEATTLE WA 98104 (“CHEF” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY (“END USER” OR “YOU”) WHO IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY CHEF (“SOFTWARE”). THIS AGREEMENT GOVERNS ALL USE BY END USER OF THE SOFTWARE.
BY EXECUTING THIS AGREEMENT OR AN ORDER FORM, OR OTHERWISE USING THE SOFTWARE, END USER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “END USER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM AND YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SOFTWARE.
This Agreement, including all referenced documents located at the URLs listed below is effective as of the date You download the Software
- Definitions. Capitalized terms used herein will have the following definitions:
- “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that is identified as confidential at the time of disclosure or that a party reasonably should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Software and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
- “Documentation” means any on-line help files, instruction manuals, operating instructions and user manuals created and provided by Chef which describe the use of the Software and which either accompany the Software or are available at https://docs.chef.io and https://www.habitat.sh/docs/overview/
- “Habitat Supervisor” means a process manager in Chef Habitat™ that (i) starts and monitors the child app service defined in a package; and (ii) receives and acts upon configuration changes from other Habitat Supervisors to which it is connected.
- “Node” means each individual component of End User’s system – physical or virtual (including any On-Prem Server, Instance or other virtual machine, server, workstation, IP router, device or component) that is assessed, installed, configured, updated, scanned and/or managed through the use of the Software, including without limitation Habitat Supervisors.
- “Software” means the applicable software made available by Chef and referenced on an Order Form, including all updates, libraries, gems, databases, plug-ins, messaging services, authentication sub-functions, certificate management, and environments provided by Chef to End User.
- License Grant. During the applicable License Term, and subject to End User’s compliance with the terms and conditions of this Agreement, Chef grants to End User a worldwide, non-exclusive, non-transferable, non-sublicensable license to install and use the Software only for the internal use of End User (“License”), (whether on premises or on Amazon Web Services, and including any information technology infrastructure for the benefit of End User’s Customers) and limited to the number of Nodes for which End User is current in the payment of the applicable usage ees and to use the Documentation only for its internal operation and use.
- Third Party Software. The Software includes components under license from third parties, including open source licenses (the “Third Party Components”). Third Party Components are subject to the terms of their accompanying licenses. Please see https://www.chef.io/3rd-party-licenses/ for more details. For avoidance of doubt, Chef’s warranty of the Software includes all Third Party Components to the extent embedded in the Software.
- Restrictions. The foregoing License is limited. End User will not: (a) copy or use the Software in any manner except as expressly permitted in this Agreement; (b) use or deploy the Software on any Node in excess of the Nodes for which End User has paid the applicable usage fees; (c) transfer, sell, rent, lease, commercialize, lend, distribute, or sublicense the Software to any third party; (d) reverse engineer, disassemble, or decompile the Software (except to the extent such restrictions are prohibited by law); (e) alter or remove any proprietary notices in the Software; (f) make available to any third party the functionality of the Software or any license keys used in connection with the Software; (g) use the Software for any purpose that is unlawful or prohibited by this Agreement or otherwise; or (h) disclose to any third party or publish the results of performance testing on or other benchmarking or performance evaluation of the Software (which will only be performed in connection with End User’s internal business operations, including gathering data on which to base Chef selection and purchasing decisions). If End User does not comply with the License terms or the foregoing restrictions, Chef may terminate this Agreement.
- Other than the License granted in Section 2, Chef and its licensors retain all right, title and interest in and to the Software and Documentation and all components thereof, including all patent, copyright, trademark, and trade secret rights, whether such rights are registered or unregistered, and wherever in the world those rights may exist and in any derivatives, modifications and enhancements thereto (collectively, the “Chef Rights”). End User will not commit any act or omission, or permit or induce any third party to commit any act or omission, inconsistent with the Chef Rights. Chef or its licensors own all graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Software and its content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (collectively, the “Chef Marks”). This Agreement does not permit End User to distribute any product or service using the Chef Marks, including in connection with any Third Party Components. Chef will retain title to all copies of the Software provided to End User or made by End User. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Chef.
- Term and Renewal; Termination.
- Term of Agreement. The term of this Agreement (the “License Term”) will take effect on the date You access or use the Software (the “Effective Date”).
- Termination for Convenience. Either party may terminate this Agreement for any reason by providing the other party 30 days advance written notice. In addition, Chef reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this Agreement, to terminate your License in order to protect its name and goodwill, its business, and/or other authorized users.
- Termination for Cause. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
- Effect of Termination. Upon termination or expiration of the License, End User must uninstall any installed Software, cease using all Software and destroy or return all copies of the Software to Chef; and certify in writing that all known copies thereof, including backup copies, have been destroyed in all forms and types of media. Any and all liabilities accrued before the effective date of the termination will survive. The provisions concerning Chef’s proprietary rights, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this Agreement for any reason.
- Software Warranty. Chef warrants that the Software will perform in all material respects as specified in its accompanying Documentation under normal use for sixty (60) days after initial receipt of or access to the Software, as applicable (the “Specifications Conformity Warranty Period”). This warranty extends only to End User. To the maximum extent permitted by applicable law, End User’s exclusive remedy for a breach of this limited warranty is to return any allegedly defective Software and Chef, at its option, will replace it or refund any fee paid for the Softwareprovided that End User gives Chef written notice of the noncompliance within the Specifications Conformity Warranty Period. Chef’s sole obligation under the limited warranty set forth in this Section 8(a) is to use its reasonable efforts to correct or replace any non-conforming Software once Chef has been made aware of such non-conformance or, in Chef’s sole discretion, to terminate this Agreement (in which event, End User will immediately stop using the Software) and refund the License Fees paid by End User to Chef up through the effective date of such termination.
- Exclusions. The warranties under Section 7(a) do not apply to any noncompliance resulting from your operation or use of the Software other than in accordance with applicable Documentation or this Agreement. Further, Chef does not warrant that the Software or Deliverables or any other items furnished by Chef under this Agreement or any Order Form are free from non-material bugs, errors, defects or deficiencies.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7(a) ABOVE, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, WARRANTIES CONCERNING THE USE, INTER-OPERABILITY, OR PERFORMANCE OF THE SOFTWARE. CHEF DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. CHEF DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
- Indemnification by Chef. Chef will indemnify End User and will pay any costs or damages that may be finally awarded in respect of any third party claims, proceedings, costs or damages, including actual attorneys’ fees and court costs and expenses in any such third party action, proceeding or case, and agreed settlements to the extent that the Software infringes any United States patent, or any copyright, trademark or other proprietary right of such third party; provided that: (a) End User promptly notifies Chef of the claim; (b) End User gives Chef all necessary information regarding the claim; (c) End User reasonably cooperates with Chef; and (d) allows Chef to control the defense and all related settlement negotiations; provided that, if any settlement requires a non-monetary obligation of an indemnified party (other than ceasing use of the Deliverable or Software), then such settlement will require the End User’s prior written consent, which consent will not be unreasonably withheld.
- Injunction. If an injunction is sought or obtained against End User’s use of Deliverables as a result of a third party infringement claim or in Chef’s opinion is likely to be enjoined, Chef may, at its sole option and expense, (a) procure for End User the right to continue using the affected Deliverable or Software, (b) replace or modify the affected Software with substantially equivalent software functionality so that it does not infringe, or, if either (a) or (b) is not commercially feasible in Chef’s opinion, (c) terminate the License and promptly refund End User a pro-rata portion of any prepaid License Fees based on the remainder of the License Term.
- Exclusions. Chef will have no liability for any infringement claim based on End User’s use of the Software other than in accordance with this Agreement or the applicable Documentation.
- Sole Remedy. THE TERMS OF THIS SECTION CONSTITUTE THE ENTIRE LIABILITY OF CHEF, AND END USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
- Limitation of Liability.
- Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED SPECIFICALLY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE SOFTWARE ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE PROVIDED BY CHEF HEREUNDER INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Aggregate Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY END USER TO CHEF UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF A CLAIM.
- General. THESE LIMITATIONS APPLY EVEN IF THIS SECTION 9 IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, THE LIABILITY OF THE PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- Confidentiality. End User and Chef will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party will protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event will use less than reasonable care. The terms of this Confidentiality section will survive termination of this Agreement. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
- Software Usage Tracking. The Software has limited phone-home capabilities as described further below (“Phone-Home Features”). The Software will be provided with Phone-Home Features disabled. If End User chooses in its sole discretion to enable the Phone-Home Features, for the time that the Phone-Home Features are enabled, End User consents to Chef having remote access to the Software for the sole purpose of receiving data and information directly from the Software regarding End User’s use of the Software (i.e., when End User installs an update or upgrade), as well as any Software bugs, errors, and other similar technical support issues. Chef will only use such Phone-Home Features for the purposes of (i) supporting the Software; and (ii) to gather information about how End User uses the Software, which may be combined with information about how others use the Software, in order to help Chef better understand trends and End Users’ needs in order to better consider new features (“Remote Access”). Chef will use End User Data received from the Phone-Home Features solely in aggregate, anonymized form and solely for the purposes of improving the Software and End User’s use experience.
- Export Compliance. As required by the laws of the United States and other countries, End User represents and warrants that End User: (a) understands that the Software and its components may be subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations; (c) will not export, re-export, or transfer the Software to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use or transfer the Software in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license;; and (e) understands that countries including the United States may restrict the import, use, or export of encryption products (which may include the Software and the components) and agrees that End User will be solely responsible for compliance with any such import, use, or export restrictions.
- End User Obligations.
- End User will comply with all applicable local, state, national, and international laws and regulations with respect to End User’s use of the Software and Services. End User further agrees that its purchase under this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Chef regarding future functionality or features.
- By downloading, accessing, or using the Software, End User represents that it is at least the legal age of majority and will, at all times, provide true, accurate, current, and complete information when submitting information or materials to Chef.
- S. Government. The Software is “Commercial Computer Software” as defined under FAR 252.227-7014. If End User is subject to the Defense Federal Acquisition Resolutions (DFAR), the Software and Documentation are licensed pursuant to Chef’s standard commercial license according to DFARS 227.7202. For all other government entities, use, duplication, or disclosure of the Software and Documentation by the U.S. Government is subject to restrictions set forth in subparagraph (b)(2) of 48 CFR 52.227-19, as applicable.
- General. Neither party will be liable for any delay or failure in performance (except for any payment obligations) due to causes beyond its reasonable control. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s voting securities or the assets governed by this Agreement; provided, that: (a) the assignor or assignee provides reasonably prompt written notice of such assignment to the non-assigning party; and (b) the assignee is capable of fully performing the obligations of the assignor under the Agreement. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. All waivers must be in writing and signed by both parties. All notices permitted or required under this Agreement will be in writing and will be delivered in person, by confirmed facsimile, overnight courier service or mailed by first class, registered or certified mail, postage prepaid. Such notice will be deemed to have been given upon receipt. This Agreement will be governed by the laws of the State of Washington, U.S.A., excluding its conflicts of law rules. The parties expressly agree that the UN Convention for the International Sale of Goods (CISG) or the Uniform Computer Information Transactions Act (UCITA) will not apply. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement supersedes all prior or contemporaneous oral or written agreements regarding its subject. Each of the parties has caused this Agreement to be executed by its duly authorized representatives as of the Effective Date. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.