License

TERMS OF SERVICE

These Terms of Service (the “Agreement”) are entered into by and between Gremlin, Inc., a Delaware corporation, (“Gremlin”), and the entity listed in the Order (“Customer”). An “Order” is a quote, order form, ordering screen(s), offer document, or other ordering document executed by the parties or accepted by Customer by means of online acceptance by clicking “Subscribe” or “I Accept” or other, similar words of acceptance through Gremlin’s proprietary website. Under this Agreement and the applicable Order, Customer agrees to subscribe to the Solution (as defined below). The “Effective Date” of this Agreement is the earlier of (i) Customer’s initial access to the Solution, or (ii) the date of acceptance or execution of the applicable Order by Customer. 

By clicking to subscribe to the Solution through Gremlin’s website you (on behalf of the entity you represent, the Customer) agree that Customer’s access and use of the Solution is governed by this Agreement. The person clicking to subscribe to the Solution represents and warrants that it has the necessary power and authority to bind the entity that it represents. If Customer does not agree to be bound by this Agreement, do not click to subscribe. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

• Scope & License. Gremlin owns and provides service offerings that assist customers with detecting weaknesses in customers’ software and systems (the “Solution”). During the Term, Gremlin may provide Customer with access to (a) the Solution, (b) certain software agents that are installed on the Customer’s host or VM using standard Linux package management utilities and facilitate the use of the Solution by Customer (the “Agent(s)”) and (c) an online, hosted portal where Customer may configure, control, and view results generated by the Solution (the “Dashboard”) (collectively, the “Solution”). Business terms related to Customer’s subscription to the Solution will either be specified when Customer creates an account to use the Solution or will otherwise be specified on the Order. For the avoidance of doubt, this Agreement governs all downloads, use, and installation of the Solution, regardless of whether Customer has entered into an Order, or just accessed and used the Solution as part of a free trial.  This Agreement governs all Orders and all Orders are hereby incorporated into and made a part of this Agreement by reference. Customer understands and agrees that the Solution is licensed, not sold. Except as expressly provided in this Agreement, Gremlin retains all right, title, and interest in and to the Solution and in all intellectual property rights therein. No license or other rights of any kind, including implied licenses, to the Solution are granted or conveyed to Customer.
• License Restrictions. Customer will comply with any limitations on its use of or access to the Solution stated on the applicable Order. Only Customer’s employees and contractors working for the benefit of Customer may use and access the Solution (“Users”). In addition, Customer agrees that it will not and will not allow third parties or Users to directly or indirectly (a) modify, translate, copy or create derivative works based on the Solution, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Solution, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Solution available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Gremlin-branding contained in or on the Solution, (e) test, evaluate, or otherwise use the Solution with any products competitive with the products of Gremlin; (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Solution or Dashboard, or (g) use or access the Solution to build or support and/or assist a third party in building or supporting products or services competitive to the Solution, or (h) use the Solution in: (i) violation of law or for any unlawful purposes; or (ii) a manner that would cause a material risk to the security or operations of Gremlin or any of its customers, or to the continued normal operation of other Gremlin customers. If Gremlin reasonably believes that Customer has breached or is breaching the terms of this Section 2, Gremlin reserves the right to suspend Customer’s use of or access to the Solution; Gremlin will provide Customer with notice of such suspension as soon as reasonably practicable given the circumstances. 
• Customer Data. As part of its use of the Solution, Customer may provide certain information through the Solution such as an email addresses for the purposes of login or the availability zone of Customer’s servers; all such data will be “Customer Data.”  Customer hereby grants Gremlin a non-exclusive, worldwide, perpetual, royalty-free, fully paid-up right, and license to use, reproduce, create derivative works of, and display the Customer Data solely for the purpose of providing the Solution. Except as provided for herein, Customer retains all right, title, and interest in and to the Customer Data.
• Payment. 
• • Fees. Customer agrees to pay all fees specified on the applicable Order. All payments will be in US dollars. Except as otherwise expressly stated herein, Orders and all fees due hereunder are non-cancelable and all fees paid are non-refundable. Gremlin may modify or add new fees in Gremlin’s sole discretion. 
  • Credit Card Payments. Customer will pay all fees in the manner specified in the Order or as otherwise agreed upon by the parties in writing. For Orders that require Customer’s payment by credit card, Customer authorizes Gremlin to charge its card or process other means of payment for the applicable fees. Unless otherwise agreed upon in an Order, Customer’s credit card will be charged fees automatically for Customer’s use of the Solution at the end of each billing cycle. Gremlin uses a third-party credit card processing service (e.g. Stripe) to process payments and offer customers the most convenient payment method in the relevant country. Customer consents to the use of such third-party payment processing service. Such third-party payment service providers may require acceptance of and compliance with separate terms to use their service. 
  • Non-Payment. Provided that Gremlin gives Customer notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue fees in full, Gremlin may suspend Customer’s access to the Solution pending payment of overdue invoices if Customer fails to pay any fees in accordance with this Agreement. 
  • Taxes. Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Gremlin’s net income.
• Confidentiality. Each party acknowledges that it may disclose or has already disclosed (the “Discloser”) certain Confidential Information to the other party (the “Recipient”). For the purposes of this Agreement, “Confidential Information” means any information, data or know how relating to the Discloser’s business, disclosed either directly or indirectly, in writing, orally or by inspection of tangible objects that should reasonably be considered to be confidential given the nature of the information disclosed or the circumstances of disclosure. Notwithstanding anything else to the contrary herein, (a) the Customer Data will be considered the Confidential Information of Customer, and (b) the Solution, and any technical information, or evaluation of the Solution supplied to Customer or prepared by Gremlin for Customer will be considered the Confidential Information of Gremlin. For the avoidance of doubt, any information relating to the Customer’s systems and software will be considered Confidential Information of Customer. Confidential Information will not, however, include any information that (i) is or becomes generally available or known to the public other than as a result of the Recipient’s violation of this Agreement, (ii) was in the Recipient’s possession or known by it without restriction prior to receipt from the Disclosing Part, (iii) was rightfully disclosed, without an obligation of confidentiality, to the Recipient by a third party, or (iv) was independently developed by or for the Recipient without use of or reference to any Confidential Information of the Discloser. The Recipient agrees to (w) hold all Confidential Information in confidence and not disclose Confidential Information to any third party, (x) use Confidential Information only to perform its obligations or exercise its rights under this Agreement, (y) protect Confidential Information of the Discloser with at least the same degree of care as it normally exercises to protect its own proprietary information of a similar nature, but never less than a reasonable standard of care, and (z) reproduce the Confidential Information only to the extent necessary to fulfill its obligations or exercise its rights under this Agreement. The Recipient will promptly notify the Discloser of any use or disclosure of the Discloser’s Confidential Information in violation of this Agreement. The Recipient agrees that it will only disclose Confidential Information to those employees, agents, consultants, and contractors (“Representatives”) of the Recipient who have a “need-to-know” such information in order to fulfill its obligations hereunder, and who have agreed to be bound by confidentiality and non-use terms at least as protective of the Discloser’s Confidential Information as the terms of this Agreement. Recipient agrees to be liable for any breach of this Agreement by its Representatives. The Recipient and its Representatives are permitted to disclose the Discloser’s Confidential Information if required by a valid order issued by a governmental agency court of competent jurisdiction provided that Recipient provides the Discloser with (a) prompt written notice of such requirement (to the extent legally permitted), and (b) reasonable assistance, at the Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Discloser cannot obtain a protective order, the Recipient will only disclose the portion of Confidential Information that the Recipient’s counsel advises the Recipient is legally required to disclose. All Confidential Information will remain the property of the Discloser.
• Data Security. Gremlin has established and implemented reasonable information security practices regarding the protection of Customer Data, including administrative, technical, and physical security processes. Notwithstanding the foregoing, Customer is responsible for maintaining appropriate security, protection and backup of its hardware, software, systems, information, and Customer Data. Gremlin is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any hardware, software, systems, information, or Customer Data.
• Feedback. Customer may from time to time provide suggestions, comments, or other feedback with respect to the Solution (“Feedback”). For the avoidance of doubt, Feedback will only be suggestions, comments or other feedback provided to Gremlin that regards the Solution and will not include Customer Data. Gremlin may want to incorporate Feedback into its Solution and this clause provides Gremlin with the necessary license to do so. Customer hereby grants Gremlin and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable, and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback as Gremlin sees fit, entirely without obligation or restriction of any kind, except that Gremlin will not identify Customer as the provider of such Feedback.
• Aggregated Usage Data. Gremlin may collect aggregated and/or anonymized data related to and/or as a result of Customer’s use of the Solution (“Aggregated Data”). Gremlin does not collect and will never disclose personal, identifying information of the Customer or its Users as part of its use of the Aggregated Data. Notwithstanding anything else to the contrary, Gremlin will retain all right, title, and interest in and to the Aggregated Data.
• Warranty Disclaimer. THE SOLUTION IS MADE AND DESIGNED SPECIFICALLY TO IDENTIFY POTENTIAL POINTS OF FAILURE IN SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS AND TO CAUSE FAILURE IN SUCH SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS. GREMLIN MAKES NO WARRANTY THAT THE SOLUTION IS SAFE FOR USE OR THAT ONLY SOFTWARE AND HARDWARE SYSTEMS AND INFORMATION TECHNOLOGY OPERATING ENVIRONMENTS THAT ARE IDENTIFIED IN A TESTING PLAN WILL BE CAUSED TO FAIL. EXCEPT AS SET FORTH ABOVE, THE SOLUTION IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. GREMLIN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS, IMPLIED, ARISING BY LAW OR OTHERWISE) REGARDING THE SOLUTION AND THEIR PERFORMANCE OR SUITABILITY FOR CUSTOMER’S INTENDED USE, INCLUDING ANY REPRESENTATIONS OR WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, GREMLIN MAKES NO WARRANTY, GUARANTY, COMMITMENT OR OTHER OBLIGATION RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS (INCLUDING, WITHOUT LIMITATION, ANY PREDICTIONS OR PREDICTIVE ANALYTICS INCLUDED IN SUCH RESULTS) AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS.
• Indemnification. Customer will defend Gremlin and its Affiliates, and each of their respective directors, officers, employees, contractors and suppliers, from and against all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney and expert witness fees) arising out of  Customer’s gross negligence, fraud, or willful misconduct, and Customer agrees to pay any settlements that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. 
• Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM CUSTOMER’S VIOLATION OF THE LICENSE AND RESTRICTIONS UNDER SECTION 2 ABOVE, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL WILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO GREMLIN IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT GREMLIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
• Term and Termination. The term of this Agreement will commence on the date you click to accept it and continue until terminated in accordance with this Agreement or all Order terms have expired, whichever comes first (the “Agreement Term”). Either party may immediately terminate this Agreement if a party materially breaches its terms and fails to cure such breach within thirty (30) days of receipt of the non-breaching party’s notice (email is acceptable) detailing such breach. Upon termination or expiration of this Agreement, (i) the license granted in Section 1 will immediately terminate; (ii) Customer will cease all access or use of the Solution and will permanently remove, delete, and uninstall all copies of the Agent in Customer’s possession or control, and (iii) Sections 2 - 9, and 11 - 14 will survive any expiration or termination of this Agreement. 
• Marketing. Customer agrees that Gremlin may send promotional and other marketing communications to any email address provided to Gremlin by Customer or its Users. Such marketing communications may be related to the Solution or other products and services offered by Gremlin or its affiliates or partners. By accepting this agreement, Customer agrees (on behalf of itself and its Users) to receive such marketing and promotional communications and represents and warrants that it has all rights necessary to do so. Users may choose to opt-out of receiving marketing communications by following the instructions in any promotional communication sent by Gremlin.
• General Terms. The parties acknowledge and agree that (a) they are acting as independent contractors, (b) each party is solely responsible for its actions or inactions, (c) the parties will not be deemed to be agents of each other, and (d) no joint venture, franchise, agency, or other legal partnership arrangement will be created or implied by this Agreement. Neither party will have the authority to enter into agreements of any kind on behalf of the other party. Except as expressly set forth herein, each party will bear sole responsibility for its own expenses, liabilities, and costs of operation. All notices under this Agreement will be in writing, and will be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law principle (whether of the State of California or any other jurisdiction). Any legal claim, suit, action or proceeding arising out of this Agreement (including its breach) will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City of San Francisco, California. Each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable, or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The limitation or elimination of any provision of this Agreement will not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by either party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the waiving party. This Agreement and the rights and obligations hereunder are not transferable or assignable (by operation of law or otherwise) by either party without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Gremlin may assign this Agreement in the event of a merger, or acquisition of all or substantially all of its assets, or for purposes of corporate restructuring. Any attempt to assign this Agreement in contravention of this section will be null and void. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may only be amended, modified or supplemented by an agreement made in writing and signed by each party hereto. Headings herein are for convenience of reference only and will in no way affect interpretation of the Agreement.