This Terms of Service Agreement ("TOS Agreement") governs access and use of Gremlin’s proprietary Solution (defined below) by the Customer identified in an Order Form that references this TOS Agreement.
Gremlin owns and provides a failure as a service offering that assists customers in detecting weaknesses in its software and systems (the "Service"). Subject to the terms set forth in this TOS Agreement, Customer will have access to (a) the Service, (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 Service by Customer (the "Agent") and (c) an online, hosted portal where Customer may configure, control, and view results generated by the Service (the "Dashboard") (collectively, the "Solution"). Customer wishes to access the Solution and, subject to the terms and conditions of this TOS Agreement, Gremlin hereby grants Customer a royalty-free, nonexclusive, non-transferable, right and license to install the Agent(s) and access the Service and Dashboard. If the Order Form specifies that the Solution is a “Pilot” then the license specified above is solely to evaluate the Solution for Customer’s internal and non-commercial purposes. Customer agrees that it will only install and use the number of Agents and/or Deployed Software Set(s) specified on the Order Form. If Customer wishes to increase the number of Agents, it must pay a pro-rata portion of the per Agent fee specified on the Order Form. For purposes of this Agreement, a “Deployed Software Set” shall mean a deployed set of software running on one or more instances, VMs or containers and providing a common API or serving a common set of business functionality. In addition, Customer agrees that it will not and will not allow third parties or users of the Solution 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 Service 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. Customer may, at its option, provide access to the Solution and Documentation to its Affiliates (defined below), in which case all rights granted and obligations incurred under this Agreement in connection therewith shall also inure to the benefit of such Affiliates. Customer represents and warrants that it: (i) has the authority to negotiate this Agreement on behalf of each of its Affiliates which will exercise the licenses granted by Gremlin hereunder, and to bind such Affiliates to terms and conditions of this Agreement, (ii) will cause such Affiliates to implement such safeguards and procedures as are necessary to ensure compliance with the terms and conditions of this Agreement, and (iii) shall be responsible for any breach of the terms and conditions of this Agreement by such Affiliates. Customer shall be responsible for all payment obligations under this Agreement regardless of whether the use of the Solution is by Customer or its Affiliates. Any claim by an Affiliate against Gremlin shall be brought by Customer and not the Affiliate. “Affiliate” shall mean (a) any company owned or controlled to the extent of at least fifty percent (50%) of its issued and voting capital by a party to this Agreement and any other company so owned or controlled (directly or indirectly) by any such company or the owner of any such company, or (b) any partnership, joint venture or other entity directly or indirectly controlled by, controlling, or under common control of, to the extent of fifty percent (50%) or more of voting power (or otherwise having power to control its general activities), a party to this Agreement, but in each case only for so long as such ownership or control shall continue.
From time to time Gremlin may perform certain services as described in one or more statement(s) of work executed by the parties (each a "SOW"). Each SOW entered into by the parties will reference this Agreement and is hereby incorporated into this Agreement by reference. If there is any conflict between the terms of this Agreement and the terms of a SOW, the terms of the SOW will govern. Gremlin will use commercially reasonable efforts to provide Customer with the services described in any SOW (the "Professional Services"). If deliverables are defined or identified in a SOW (the "Deliverables"), Gremlin will use commercially reasonable efforts to provide such Deliverables in material conformance with the specifications provided in such SOW. If a party requests changes to a SOW in writing, the other party will consider and negotiate such changes, however, any modification to a SOW must be agreed upon by both parties in writing. Customer understands and agrees that, if applicable, any costs provided in a SOW are subject to change (increase or decrease) if such SOW is revised. For Gremlin to effectively perform the Professional Services, Customer will be required to provide certain data or materials to Gremlin including but not limited to anything described in the SOW ("Customer Data"). Customer is solely responsible for the accuracy and completeness of the Customer Data and understands that Customer’s failure to provide complete and accurate Customer Data may negatively affect Customer’s use of the Solution and Gremlin’s ability to provide the Professional Services.
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 Professional Services and the Solution. Except as provided for herein, Customer retains all right, title, and interest in and to the Customer Data and the Deliverables. Customer understands and agrees that the Solution is licensed, not sold. Except as expressly provided here, Gremlin retains all right, title and interest in and to the Solution and any know-how, process, or knowledge related to the Solution or acquired or learned in the course of providing the Professional Services, and in all intellectual property rights therein. No license or other rights of any kind, including implied licenses, to the Solution is granted or conveyed to Customer.
Gremlin may provide limited support via electronic means to Customer for the installation and operation of the Agent in Customer’s environment or provisioning of access to any hosted components of the Solution. If Gremlin deems necessary, Gremlin may choose to visit Customer’s premises and assist Customer. Customer will allow Gremlin access to its premises for this purpose and will cooperate with Gremlin for this purpose. Notwithstanding the foregoing, Gremlin may, but has no obligation to, provide support, maintenance and upgrades to the Agent, unless specified otherwise on the Order Form.
Customer agrees to pay all fees specified on an Order Form within thirty (30) days of an invoice sent by Gremlin. Unless otherwise specified on an Order Form, Gremlin will invoice Customer in advance and on the Start Date. All payments shall be in US dollars.
The term of this Agreement will commence on the Start Date specified on the applicable Order Form and continue until the End Date (the "Term"). If the Order Form specifies that the Service is a "Pilot" then (a) Customer may terminate this TOS Agreement at any time for any reason with seven (7) days’ notice and (b) this Agreement will automatically terminate upon the parties’ execution of a commercial agreement for a full release of the Solution ("Commercial Agreement"). In addition, Gremlin may immediately terminate this Agreement with or without notice upon Customer’s breach of Section 1 and may terminate after 30 days if Customer breaches this Agreement and does not cure such breach within such thirty (30) day period. Upon termination or expiration of this Agreement, (i) the license granted in Section 1 will immediately terminate; (ii) except as permitted under a Commercial Agreement, 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 3-11 and 13-14 will survive any expiration or termination.
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.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.
EXCEPT FOR A CLAIM PURSUANT TO SECTION 9, GREMLIN WILL NOT 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 SHALL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE PRECEDING 12 MONTH PERIOD. THESE LIMITATIONS SHALL 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.
Customer will defend, indemnify and hold harmless Gremlin and its affiliates, and each of their respective directors, officers, employees, agents, contractors and suppliers, from and against all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney and expert witness fees) arising out of or related to Customer’s use of or inability to use the Solution; provided that Gremlin provides Customer with prompt notice, and gives information, assistance and sole authority to Customer to defend or settle the claim. Gremlin will defend, indemnify and hold harmless Customer and its affiliates, and each of their respective directors, officers, employees, agents, contractors and suppliers, from and against all third-party claims, damages, losses, liabilities, costs and expenses (including reasonable attorney and expert witness fees) arising out of or related to a claim that the Solution infringes an intellectual property right of a third party; provided that Customer provides Gremlin with prompt notice, and gives information, assistance and sole authority to Gremlin to defend or settle the claim. For the avoidance of doubt, each party’s obligation to defend, indemnify and hold harmless is limited to the defense of the third party claim and the payment of any settlements agreed to by the indemnifying party in writing or final judgments awarded to the third party claimant by a court of competent jurisdiction.
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 shall 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.
During the Term, Customer agrees to provide feedback to Gremlin regarding the use, operation and functionality of the Solution and/or Professional Services ("Feedback"). Both Parties agree that all Feedback is and will be given entirely voluntarily. Feedback, even if designated as confidential Customer, will not be deemed to constitute Confidential Information or to impose any confidentiality obligations on Gremlin. Gremlin will be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction.
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, content or data of Customer. 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, content or 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.
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.