ONLINE MASTER LICENSE AND SERVICES AGREEMENT
July 12th, 2016 (view archived version)
THIS ONLINE MASTER LICENSE AND SERVICES 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 (“CUSTOMER” OR “YOU”) WHO HAS EXECUTED AN ORDER FORM (OR OTHER ORDERING OR PURCHASING DOCUMENT) REFERENCING THIS AGREEMENT OR IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY CHEF (“SOFTWARE”) OR PROFESSIONAL SERVICES (“SERVICES” AND TOGETHER WITH THE SOFTWARE, THE “PRODUCT”) AND GOVERNS ALL USE BY CUSTOMER OF THE PRODUCT REFERENCED IN SUCH ORDER FORM.
BY EXECUTING AN ORDER FORM, CUSTOMER 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 “CUSTOMER” 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 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.
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:
- “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 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.
- “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.
- “License Term” means one year, renewable automatically for an additional one year, unless the applicable Order Form provides otherwise.
- “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 assessed, installed, configured, updated, scanned and/or managed through the use of the Software, including without limitation Habitat Supervisors.
- “Order Form” means a separate document that references this Agreement and is signed by both Parties.
- “Professional Services” means any professional services performed by Chef for Customer pursuant to any Order Form.
- “Services” means, collectively, Professional Services and Support Services.
- “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 Customer.
- “Support Services” means the technical support services described at https://www.chef.io/service-level-agreement/ and any Order Form.
License Grant. During the applicable 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”), (whether on premises or in the cloud, and including any information technology infrastructure for the benefit of Customer’s customers) 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.
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. 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 will 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.
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 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 Customer 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 Customer or made by Customer. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Chef.
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.
Fees and Payment Terms:
License Fee. The specific License Fee and the number of Nodes Licensed of the Software 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. License Fees will be paid in advance either annually or in accordance with any different billing frequency stated in the applicable Order Form.
Professional Services Fee. For Professional Services fees designated as “fixed fee”, Chef will invoice Customer upon execution of the applicable Order Form. For Professional Services not designated as fixed fee, Chef will invoice monthly in arrears based on actual hours worked during the preceding month. Unless the applicable Order Form provides otherwise, Professional Services Fees are non-cancelable and fees paid are non-refundable.
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.
Payments. Unless otherwise provided in an Order Form, all payments of fees or charges under this Agreement will be made in United States dollars and are due in full within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Chef and notifying Chef of any changes to such information.
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 ½%) 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.
Taxes. Unless otherwise specified in the applicable Order Form, 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 will this apply to taxes imposed on the net income of Chef.
Delivery and Support.
Support Services. Chef will provide Customer the Support Services listed at https://www.chef.io/service-level-agreement at the “Premium” level, unless an Order Form specifies otherwise.
Delivery and Software Acceptance. 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. The Software will be deemed accepted immediately upon delivery. Acceptance (if any) of Deliverables will be specified in an Order Form.
Term and Renewal; Termination.
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 remain in effect until all Order Forms under this Agreement have expired.
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.
Effect of Termination. Customer’s obligation to make a payment of any outstanding, unpaid fees will survive termination of this Agreement. If any Order Form is terminated pursuant to and in accordance with this Section 8, (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the parties’ obligations under the applicable Order Form; (b) Chef will have no obligation to perform any Services under the terminated Order Form 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 Order Form 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. 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.
Professional Services. Chef will perform the Professional Services detailed in any Order Form. Order Forms will 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 Order Form will become effective only upon acceptance by both parties hereto as evidenced by signature of an authorized representative of each party on the applicable Order Form. Chef will perform the Professional Services using its 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.
Customer Responsibilities. Customer understands its business needs and has determined independently that the Deliverables and Professional Services will meet its needs.
Intellectual Property Ownership. Should the Professional Services set forth in an Order Form result in any reports, work product or other tangible items identified in an Order Form as a deliverable (“Deliverables”), Customer is given, unless otherwise provided in an Order Form, 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 an Order Form, Chef will 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 will not own or have any right, title or interest in or to the Confidential Information of Customer, whether by assignment, license or otherwise.
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.
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(a) 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.
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(b) 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.
Exclusions. The warranties under Sections 10(a) and 10(b) do not apply to any noncompliance resulting from any: (a) use not in accordance with this Agreement or any applicable Order Form, 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 Order Form are free from non-material bugs, errors, defects or deficiencies.
Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTIONS 10(a) and 10(b) 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.
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 will require the Customer’s prior written consent, which consent will not be unreasonably withheld.
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.
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.
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.
Indemnification by Customer. Customer will 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 third party claim arising from or in any related to Customer’s violation of (i) applicable laws, rules or regulations and/or (ii) the confidentiality provisions of this Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Chef will provide Customer with written notice of such claim, suit or action.
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 PRODUCTS OR SERVICES 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, DOCUMENTATION, DELIVERABLES OR THE SERVICES 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 CUSTOMER 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 12 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. Customer 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.
If and when Customer adds additional Nodes to its License, Customer will pay to Chef the License Fees for such additional Nodes at the then-current price. Upon Chef’s request (such request not to be made more than twice during any 12 month period without good cause), Customer agrees to promptly deliver to Chef (a) any usage files and reports generated by the Software to permit Chef to verify the number of Nodes actually used by Customer during the applicable License Term; and/or (b) a certification signed by one of Customer’s officers regarding the number of Nodes actually used by Customer during the applicable License Term. Notwithstanding the foregoing, Customer agrees to reasonably cooperate with Chef to verify the number of Nodes actually used by Customer during the applicable License Term. If Chef confirms that Customer has exceeded the number of Nodes for the applicable License Term, in addition to any other remedies available under this Agreement or applicable law, Customer agrees to pay to Chef the then-current License Fees for the additional Nodes used by Customer.
Unless Customer chooses to disable phone-home features in the Software, Customer consents to Chef having remote access to the Software for the sole purpose of receiving data and information directly from the Software regarding Customer’s use of the Software (i.e., when Customer installs an update or upgrade), as well as any Software bugs, errors, and other similar technical support issues. Chef will only use such data and information for the purposes of (i) providing the Support Services; and (ii) to gather information about how Customer uses the Software, which may be combined with information about how others use the Software, in order to help Chef better understand trends and Customers’ needs in order to better consider new features (“Remote Access”). Chef will use Customer Data received from Remote Access solely in aggregate, anonymized form and solely for the purposes of improving the Software and Customer’s use experience.
Export Compliance. As required by the laws of the United States and other countries, Customer represents and warrants that Customer: (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 Customer will be solely responsible for compliance with any such import, use, or export restrictions.
Customer will comply with all applicable local, state, national, and international laws and regulations with respect to Customer’s use of the Software and Services. Customer 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, Customer 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.
U.S. Government. The Software is “Commercial Computer Software” as defined under FAR 252.227-7014. If Customer 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, and all agreements referenced herein, are in addition to, and do not limit any applicable provisions of Chef Terms and Conditions of Use, and this Agreement supersedes all prior or contemporaneous oral or written agreements regarding its subject. In the event of a conflict between this Agreement and other applicable documents between the Parties, such documents will apply in the following descending order of precedence: (w) Order Form; (x) this Agreement; (y); other applicable agreements. In the event of a conflict between any terms of this Agreement or terms of an Order Form and the terms and conditions attached to or otherwise forming part of any Purchase Order issued by Customer (collectively, “Purchase Order Terms”), the terms of this Agreement and/or Order Form will control or supersede the Purchase Order Terms and void any additional obligations placed on Chef not contemplated by this Agreement. 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.