Online Master License and Services Agreement
December 2, 2014 (view archived version)
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“You” or “Customer”) AND CHEF SOFTWARE INC. (“Chef”). BEFORE DOWNLOADING, ACCESSING, OR USING ANY PART OF CHEF ENTERPRISE CHEF (THE “SOFTWARE”) OR SERVICES (TOGETHER WITH THE SOFTWARE, THE “PRODUCT”), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS ONLINE MASTER LICENSE AND SERVICES AGREEMENT (the “Agreement”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THE PRODUCT. CHEF IS WILLING TO LICENSE AND ALLOW THE USE OF THE SOFTWARE AND PERFORM THE SERVICES ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY TERM OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PRODUCT.
BY CLICKING THE “I ACCEPT” BUTTON OR BY ACCESSING, DOWNLOADING OR OTHERWISE USING THE PRODUCT, YOU SIGNIFY YOUR AGREEMENT TO AND ACCEPTANCE OF THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY AND TO LEGALLY BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS RELATING TO YOUR USE OF THE PRODUCT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO, AND YOU MUST NOT ACCESS, DOWNLOAD OR OTHERWISE USE THE PRODUCT.
Definitions. Capitalized terms used herein shall have the following definitions:
1.1.“Chef Proprietary Item” means any work, materials, or other tangible or intangible property proprietary to Chef and/or used by it in the course of its performance under this Agreement or any SOW or Order Form and that is (i) not a Deliverable; and (ii) developed by Chef independently of this Agreement. Inclusion of any Chef Proprietary Item in a Deliverable does not change its character as a Chef Proprietary Item.
1.2.“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.
1.3.“Core Software” means Chef server and Chef client.
1.4.“Customer Data” means all electronic data or information that both: (a) constitutes Customer’s Confidential Information; and (b) is submitted to Chef through use of the Software.
1.5.“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 provided to Customer pursuant to this Agreement.
1.6.“Node” means each individual component of Customer’s system – physical or virtual (i.e., server, workstation, IP router, Virtual Machine, or other device or component) that is installed, configured, updated and/or managed through the use of the Software.
1.7.“Order Form” means a separate document that references this Agreement and is signed by both Parties.
1.8.“Premium Features” means Management Console, Analytics Platform, High Availability, Replication, and any other features identified as Chef Premium Features at chef.io/chef.
1.9.“Professional Services” means any professional services performed by Chef for Customer pursuant to any SOW.
1.10.“Services” means, collectively, Professional Services and Support Services.
1.11.“Software” means the Core Software and Premium Features, and all updates, libraries, gems, databases, plug-ins, messaging services, authentication sub-functions, certificate management, and environments provided by Chef to Customer.
1.12.“Support Services” means the technical support services described at https://www.chef.io/service-level-agreement#support.
License Grant. During the License Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Chef grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to install and use the Software only for the internal use of Customer (“License”), and limited to the number of Nodes for which Customer is current in the payment of the applicable License Fee and to use the Documentation only for its internal operation and use.
2.1. Any unauthorized use of the Software will be deemed to be a material breach of this Agreement.
2.2. Some components of the Software may be subject instead to the terms of an “open source” license (the “Open Source Components”). Chef may provide third party software, including Open Source Components, to Customer as part of Customer’s download of the Software. Third party software is subject to the terms of their accompanying licenses. Please see https://www.chef.io/3rd-party-licenses for more details.
Restrictions. The foregoing License is limited. Customer 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 Customer has paid the applicable License Fee; (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 shall only be performed in connection with Customer’s internal business operations, including gathering data on which to base Chef selection and purchasing decisions). If Customer does not comply with the License terms or the foregoing restrictions, Chef may terminate this Agreement.
4.1.Software and Documentation. 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”). Customer shall 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 Customer to distribute any product or service using the Chef Marks, including in connection with any Open Source Components. Chef shall retain title to all copies of the Software provided to Customer or made by Customer. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Chef.
4.2.Proprietary Items. Customer will have or obtain no rights in Chef Proprietary Items (or in any modifications or enhancements to them or any derivative work within the meaning of the US Copyright Act) other than, to the extent the Chef Proprietary Items are incorporated into a Deliverable, Chef will grant Customer a License in such Chef Proprietary Items to use them as part of (but not unbundled from) the Deliverable. All other intellectual property rights in and to the Chef Proprietary Items will remain in and/or hereby assigned to Chef.
Free Evaluations, Free Licenses, and License Fees.
5.1.Free Licenses and Evaluations:
5.1.1.Free On-Premise Evaluation (Chef Essentials): For thirty (30) calendar days after downloading the Software (the “Evaluation Period”), Customer may operate unlimited Nodes on-premise and Chef will provide Customer the Support services listed at https://www.chef.io/service-level-agreement/#support, at the “Chef Subscription” level (“Free Evaluation”). Thereafter, Customer can decide to upgrade to Chef Subscription or Chef Premium Subscription to continue being supported by Chef.
5.1.2. Free On-Premise License: Customer may operate indefinitely up to twenty-five (25) on-premise Nodes behind its firewall at no charge (“Free On-Premises License” and, together with the Free Hosted License, the “Free Licenses”).
5.1.3. Free Hosted License: Customer may operate indefinitely up to five (5) hosted Nodes in Chef’s hosted environment at no charge (“Free Hosted License”).
5.2.1. Hosted License Fee: Customer may operate more than five (5) hosted Nodes in exchange for a License Fee, described further below.
5.2.2. On-Premise License Fee. After expiration of the Evaluation Period, Customer may operate more than twenty-five (25) on-premise Nodes in exchange for a License Fee, described further below.
5.2.3. The specific License Fee and the number of Nodes Licensed will be stated in an Order Form. Chef reserves the right to change the License Fee upon the expiration of the License Term. License Fees are based on Software purchased, not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of Nodes purchased cannot be decreased during the relevant License Term. Chef may, in its discretion, deactivate the hosted service for any Free License that has been inactive for 180 days.
5.3.Professional Services Fee. Customer will pay Chef the fees, compensation and other amounts for Professional Services as specified in an applicable Statement of Work (“SOW”).
5.4.Costs and Expenses. Customer will reimburse Chef for any reasonable expenses incurred by Chef in the performance of the Services, including without limitation, travel and lodging expenses.
5.5.Payments. Any recurring fees, such as monthly License Fees, will be paid in advance by Customer, on or before the first of the month, during which such License is in effect. Unless otherwise provided in a SOW or Order Form, all payments of fees or charges under this Agreement shall be made in United States dollars and are due within thirty (30) days of Customer’s receipt of the applicable Chef invoice.
5.6.Late payments. Late payments (other than amounts disputed in good faith by Customer) will bear interest at the lesser of one and one half percent (1 _%) per month or the maximum rate allowed by law. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. All fees are non-refundable. Further, Chef may terminate the License if Customer’s payments are overdue by more than thirty (30) days. Following a License termination, subject to applicable law, Chef makes no guarantees as to the availability of Customer Data.
5.7.Taxes. Unless otherwise specified in the applicable Order Form or SOW, the fees, reimbursable expenses, compensation and other amounts payable to Chef under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority. Customer will pay or reimburse Chef for all such amounts upon demand or provide certificates or other evidence of exemption. In no event shall this apply to taxes imposed on the net income of Chef.
Term and Renewal; Termination.
6.1.Term of Agreement. The term of this Agreement (the “Term”) will take effect on the earlier of (a) the date You sign this Agreement; (b) at the moment You click “I ACCEPT” or; (c) the date You access or use the Software (the “Effective Date”). Unless earlier terminated as provided for elsewhere in this Agreement, this Agreement will continue on a month to month basis until either party gives the other party thirty (30) days’ written notice of termination. Except as otherwise specifically provided for in the applicable Order Form or SOW, the parties’ respective rights and obligations in respect of any License, Services and/or Deliverables subject to any Order Form or SOW will survive any termination of the Term.
6.2.License Term. Unless otherwise provided specifically in an Order Form, the License Term shall be month to month as provided in Section 6.1 above (the “License Term”).
6.3.Early Termination. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach. In addition, without prejudice to any right or remedy Chef may have against Customer for breach or nonperformance of this Agreement, Chef may terminate this Agreement and any License granted herein upon written notice if Customer fails to pay any Fees within thirty (30) days after such Fees are due and payable.
6.4.Effect of Termination. Customer’s obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement. If any SOW is terminated pursuant to and in accordance with this Section 6, (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the parties’ obligations under the applicable SOW; (b) Chef will have no obligation to perform any Services under the terminated SOW after the effective date of the termination; and (c) Customer will pay to Chef any fees, reimbursable expenses, compensation or other amounts payable for Services performed under the terminated SOW prior to the effective date of the termination. Upon termination or expiration of the applicable Order Form, Customer 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. Further, Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 3, 4, 5, 6.4, 9.2, 10, 11, 12, 13, 14, 16, 17, and 19. The provisions concerning Chef’s proprietary rights, feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this Agreement for any reason.
Delivery. Promptly after the Effective Date, Chef will make the Software available to Customer electronically. Software will be deemed to be delivered to Customer’s billing address unless Customer provides written notice otherwise.
Support Services. Unless Customer has only a Free License, Chef will provide Customer the Support Services listed at the “Chef Subscription” level, unless an Order Form specifies otherwise. If Customer has a Free License, Chef will not provide Support Services pursuant to this Agreement.
8.1.Remote Support. As part of the Support Services, unless Customer opts-out, Chef may have remote access to the Software that will enable it to receive data and information directly from the Software regarding Software bugs, errors, and other similar technical support issues. Chef will only use such data and information for the purposes of providing the Support Services and in aggregate form for the purposes of improving the Software. If Customer elects to disable Chef’s remote access to the Software, Chef will not be responsible for any related delays in providing the Support Services.
8.2.Changes/Derivatives. Customer may make derivatives of the Software for its internal use. However, such derivatives may impact Chef’s ability to perform support. Chef reserves the right, in its sole discretion, to limit or refuse to support and maintain derivatives.
8.3.Limitations. Chef will not be responsible for correcting any errors not reproducible by Chef on the unmodified Software or errors caused by: (a) Your failure to implement all updates and upgrades provided by Chef under this Agreement; (b) changes by You to the operating system or environment which adversely affect the Software; (c) use of the Software in a manner for which it was not designed or other than as expressly authorized by this Agreement; (d) accident, negligence, or misuse of the Software; or (e) operation of a version of the Software older than the most current Version of the Software and the immediately preceding Version of the Software, but not any earlier Versions. A “Version” is a Major Version in the following format: Major Version.Minor Version.Patch Level.
Professional Services. Chef will perform the Professional Services detailed in any SOW. SOWs shall set forth a description of the work to be performed, fees, time schedules and other special terms and conditions applicable to the particular project. Each SOW will become effective only upon acceptance by both parties hereto as evidenced by signature of an authorized representative of each party on the applicable SOW. Chef will perform the Professional Services using employees, subcontractors or agents, as Chef in its sole discretion deems appropriate. Chef will remain responsible to Customer for the actions of its employees, subcontractors or agents when so used.
9.1.Customer Responsibilities. Customer is responsible for the identification of any federal, state and local laws, regulations and statutes that apply to any project described under a SOW, for communicating such to Chef, and for verifying that the proposed project meets such requirements. Customer understands its business needs and has determined independently that the Deliverables and Professional Services will meet its needs.
9.2.Intellectual Property Ownership. Should the Professional Services set forth in a SOW result in any reports, work product or other tangible items identified in a SOW as a deliverable (“Deliverables”), Customer is given, unless otherwise provided in a SOW, a worldwide, non-exclusive, non-transferable, non sub-licensable license to use the Deliverables for Customer’s internal use. Other than the limited license to the Deliverables contained herein or as otherwise set forth in a SOW, Chef shall own and retain all right, title and interest, express or implied, in and to any Deliverables created during the course of providing the Professional Services and to all other works of authorship of any kind or nature prepared, created or conceived by Chef in the performance of the Professional Services, exclusive of any Confidential Information of Customer incorporated therein. Chef shall not own or have any right, title or interest in or to the Confidential Information of Customer, whether by assignment, license or otherwise.
9.3.Residuals/Items of General Knowledge. Chef will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its professional services practice that are used in the course of providing the Professional Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Chef. In no event will Chef be precluded from developing for itself, or for others, materials that are competitive with the Deliverables, irrespective of their similarity to the Deliverables, provided this is done without use of Customer’s Confidential Information.
10.1.Services Warranty. Chef warrants to Customer for a period of sixty 60 days after Customer acceptance of Services or Deliverables or initial receipt of or access to the Software, as applicable (the “Specifications Conformity Warranty Period”) that: (a) the Services will be performed in a good and workmanlike manner; and (b) the Deliverables will perform in all material respects with the applicable specifications. Chef’s sole obligation under the limited warranty set forth in this Section 10.1 is to use commercially reasonable efforts to correct any Services or Deliverables that do not comply with the warranties set forth in this Section (e.g., by reperformance of any noncomplying Services or modifying any noncomplying Deliverables); provided that Customer gives Chef written notice of the noncompliance within the Specifications Conformity Warranty Period. If, after the expenditure of commercially reasonable efforts, Chef is unable to correct the noncompliance, Chef may choose to refund an equitable portion (e.g., based upon the value of Customer’s actual use of, or any benefits received by Customer) of the fee paid by Customer for such Deliverables or Services, whereupon the same will be deleted from the Deliverables or Services and no longer considered a part thereof.
10.2.Software Warranty. Chef warrants that the Software will perform in all material respects as specified in its accompanying Documentation under normal use for the duration of the Specifications Conformity Warranty Period. This warranty extends only to Customer. To the maximum extent permitted by applicable law, Customer’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 Software, provided that Customer 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 10.2 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, Customer will immediately stop using the Software) and refund the License Fees paid by Customer to Chef up through the effective date of such termination.
10.3.Exclusions. The warranties under Sections 10.1 and 10.2 do not apply to any noncompliance resulting from any: (a) use not in accordance with this Agreement or any applicable SOW, including Customer operation or use of the Software or Deliverables other than in accordance with applicable documentation or design or on hardware not recommended, supplied or approved by Chef; (b) modification, damage, misuse or other action of Customer or any third party; or (c) combination with any goods, services or other items provided by Customer or any third party. Further, Chef does not warrant that the Software or Deliverables or any other items furnished by Chef under this Agreement or any SOW are free from non-material bugs, errors, defects or deficiencies.
10.4.Disclaimer.EXCEPT FOR THE LIMITED WARRANTY IN SECTIONS 10.1 AND 10.2 ABOVE, THE SOFTWARE, DELIVERABLES AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE 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, DELIVERABLES OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
11.1.Indemnification by Chef. Chef will indemnify Customer 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 or Deliverables infringe any United States patent, or any copyright, trademark or other proprietary right of such third party; provided that: (a) Customer promptly notifies Chef of the claim; (b) Customer gives Chef all necessary information regarding the claim; (c) Customer 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 shall require the Customer’s prior written consent, which consent will not be unreasonably withheld.
11.2.Injunction. If an injunction is sought or obtained against Customer’s use of Deliverables or Software 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 Customer 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 Customer a pro-rata portion of any prepaid License Fees based on the remainder of the License Term.
11.3.Exclusions. Chef will have no liability for any infringement claim (a) based on modifications to the Deliverable or Software made by a party other than Chef or third party acting on behalf of Chef, if a claim would not have occurred but for such modifications, (b) based on the use of other than the then-current, unaltered version of the Deliverable or Software, unless the infringing portion is also in the then-current, unaltered release; (c) based on the use, operation or combination of the Deliverable or Software with non-Chef programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; (d) attributable to any Third Party Components; or (e) based on Customer’s use of the Deliverable or Software other than in accordance with this Agreement or the applicable Documentation.
11.4.Sole Remedy. THE TERMS OF THIS SECTION CONSTITUTE THE ENTIRE LIABILITY OF CHEF, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
11.5.Indemnification by Customer. You agree to defend, indemnify, and hold harmless Chef and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings