LUNCHTIME POC AGREEMENT

July 5th, 2017

THIS LUNCHTIME POC 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 (“USER” OR “YOU”) WHO IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY CHEF DESCRIBED FURTHER BELOW. THIS AGREEMENT GOVERNS ALL USE BY END USER OF THE SOFTWARE.

BY CLICKING THE “I ACCEPT” BUTTON, OR OTHERWISE USING THE SOFTWARE, 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 “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 ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SOFTWARE.

  1. GRANT OF LICENSE
    1. License. Chef hereby grants to User the following rights in a prepackaged instance of Chef Automate provided in a test environment (the “Software”) for the duration of the Evaluation Period: a nonexclusive, nontransferable license for User’s internal use of the Software solely for the purpose of evaluating and testing the Software and using provided demonstration data as a driver for the evaluation, and to provide feedback to Chef (the “License”). Use of the Software for any other purpose constitutes a material breach of this Agreement.
    2. License Term. The License is granted for thirty (30) days from date of download of the Software (the “Evaluation Period”).
    3. Restrictions. User may not disclose externally any information about the Software, including the results of performance/ benchmark tests run on the Software without the prior written consent of Chef. Further, the License does not authorize User, and User is prohibited from, without limitation: (a) the reverse engineering or reverse compilation of the Software, or any other attempt to derive source code from the Software; (b) the sale, transfer, assignment, delegation or sublicense of the License or the Software; or (c) writing or developing any derivative Software or any other software program based upon the Software or any Confidential Information.
  1. SOFTWARE USAGE TRACKING. User consents to Chef receiving data and information directly from the Software for the sole purpose of obtaining information regarding User’s use of the Software, as well as any Software bugs, errors, and other similar technical support issues. Chef will only use such data and information (“Software Usage and Technical Support Data”) for its own business purposes, including but not limited to the purposes of (i) providing the Support Services; and (ii) to gather information about how 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 Users’ needs in order to better consider new features, and (iii) improving the Software and User’s use experience. Chef will use Software Usage and Technical Support Data solely in aggregate, anonymized form and solely for Chef’s own business purposes.
  2. EARLY TERMINATION. Chef may terminate this Agreement, and the License granted hereby, if User fails to comply with any of the terms or conditions set forth herein. User agrees, upon being notified in writing of such termination, or upon expiration of the Evaluation Period, to cease use of, uninstall and return to Chef the Software and, if applicable, any copies of it made by User.
  3. OWNERSHIP. The Software, including all copies of the Software and all copyrights subsisting in, or related to the Software is owned by Chef. All intellectual property rights and title to the Software, including any derivatives of the Software, remain with Chef and no interest or ownership therein is conveyed to the User under this Agreement. Except for those rights in the Software specifically granted in this Agreement, no other rights in the Software are granted to User. User agrees not to remove any copyright or other proprietary identification notices from the Software.
  4. For the duration of the Evaluation Period, Chef will provide to User the technical support services described at https://www.chef.io/service-level-agreement/ at the “base support” level.
  5. WARRANTY
    1. Chef represents that Chef (i) has the legal right to grant User the License as set out in this Agreement; and (ii) that the Software does not infringe any third party intellectual property or other rights.
    2. Chef does not make any other representation or warranty, express or implied, with regard to the software OR SUPPORT. Without limitation of the foregoing, the software is made available under this Agreement “AS IS”, with all defects, errors, and deficiencies. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 6, CHEF DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMIATED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING AND FITNESS FOR A PARTICULAR PURPOSE.
  1. LIMITATION OF LIAIBLITY. Notwithstanding anything else in this Agreement, the aggregate liability of Chef under this agreement for direct damages shall be limited to $1,000. In no event will Chef be liable or responsible to User for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORSEEABLE, AND WHETHER arising under theory of contract, tort (including negligence), strict liability or otherwise.
  2. RELATIONSHIP OF THE PARTIES. Each party shall bear all costs and expenses incurred by it under or in connection with this Agreement. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, subcontract, or other business relationship with the other party.
  3. CONFIDENTIALITY AND DISCLOSURE 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. “Confidential Information” means any proprietary or other 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, 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.
  4. GOVERNING LAW. This Agreement will be governed by the laws of the State of Washington, U.S.A., excluding its conflicts of law rules.
  5. COMPLETE AGREEMENT. This Agreement contains the complete and exclusive statement of the terms of the Agreement between User and Chef with respect to the subject matter herein and merges any prior contemporaneous agreements, commitments, proposals, representations, or communications, oral or written. This Agreement may be amended only in writing and signed by both parties to the Agreement.
  6. COMPLIANCE WITH LAWS. Each party agrees to comply fully with all applicable ordinances, codes, standards, laws, rules, regulations and orders of any governmental authority and will hold and fully comply with all applicable required licenses, permits and approvals, including without limitation the U.S. Export Administration Act, regulations of the U.S. Department of Commerce and other export controls of the United States.