These Enterprise Terms of Service (“Agreement”) govern access to and use of Gremlin Inc.’s (“Gremlin”) proprietary Solution (defined below) by the customer identified in on the applicable Order Form (“Customer”). Customer may purchase access to and use of the Solution under an ordering document executed by the parties that references this Agreement (“Order Form”).
Gremlin owns and provides a failure as a service offering that assists customers in detecting weaknesses in its software and systems (the “Service”). During the Term, 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 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. 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 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.
Customer will comply with any limitations on its use of or access to the Solution stated on the applicable Order Form. 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. 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 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, and (ii) 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 of a party shall mean an entity directly or indirectly controlling, controlled by or under common control with that party (where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all of the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority, as of the date of this Agreement or hereafter during the term of this Agreement).
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.
Gremlin will make commercially reasonable efforts to provide basic technical support for the Solution via e-mail and/or other electronic means (“Support Services”). Gremlin may also provide limited support to Customer to assist Customer with installing and operating the Agents in Customer’s own environment. If Gremlin deems necessary and with Customer’s permission, Gremlin may visit Customer’s premises to further assist Customer; Customer will allow Gremlin access to its premises and cooperate with Gremlin for such purpose.
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 upon execution of an applicable Order Form. All payments shall be in US dollars. Except as otherwise expressly stated herein, 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 provided that Gremlin gives Customer reasonable advance written notice and that any new or revised fees for the Solution will only become effective upon renewal of the applicable Order Form. If Customer fails to pay any fees in accordance with this Agreement, Gremlin may suspend Customer’s access to the Solution pending payment of such overdue invoices; 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. Fees stated on the Order Form 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.
The term of this Agreement will commence on the start date specified on the applicable Order Form and continue until all Order Forms have expired or been terminated (the “Agreement Term”). Unless otherwise set forth in an Order Form, all Order Forms will automatically renew for additional periods equal to one (1) year or a term equal to the initial subscription term (as stated on the applicable Order Form). Either party may choose not to renew any Order Form by giving the other party notice of non-renewal at least thirty (30) days before the end of the then-current term. Gremlin may immediately terminate this Agreement upon notice if Customer breaches Section 2 and either party may terminate this Agreement after thirty (30) days if the other party materially 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) 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 - 4, 6, 7, 11, 13, 14, and 15 will survive any expiration or termination.
Gremlin represents and warrants that (a) it will comply with all applicable federal, state and local laws and regulations with respect to its business operations under this Agreement; (b) the Solution will operate in compliance with any technical documentation regarding the Solution that Gremlin generally publishes to all of its customers (“Documentation”) (c) it will provide the Support Services in a professional and workmanlike manner. If the Solution is not provided in accordance with the Documentation, Customer will promptly notify Gremlin and Gremlin will make commercially reasonable efforts to bring the Solution in compliance with the Documentation; if Gremlin is not able to so modify or otherwise fix the Solution, Gremlin will terminate this Agreement and refund any unused pre-paid fees to Customer. The foregoing remedy is Customer’s sole remedy and Gremlin’s sole liability if Gremlin breaches the terms of Section 8(b). 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.
EXCEPT FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 11 (CONFIDENTIALITY), 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 TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. 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.
10.1. Gremlin’s Indemnification. Gremlin will defend Customer and its officers, directors, and employees against any third party claim or action brought against Customer to the extent based on (a) the allegation that the Solution infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (b) the gross negligence, fraud, or willful misconduct of Gremlin, and Gremlin agrees to pay any settlements that Gremlin agrees to in a writing signed by Gremlin’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Solution or portions or components of either that are (a) not provided by Gremlin, (b) combined with other products, processes or materials that are not reasonably contemplated by Gremlin or the Documentation, or (c) where Customer’s use of the Solution is not in accordance with this Agreement or the Documentation.
10.2. Customer’s 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.
10.3. Procedures. Each party’s obligations under Sections 10.1 and 10.2 are conditioned on the party seeking to have a claim defended and settled (“Indemnified Party”) by the other party (“Indemnifying Party”) (a) providing the Indemnifying Party with prompt written notice of any claim, (b) granting the Indemnifying Party the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the Indemnifying Party in the defense or settlement of the claim at the Indemnifying Party’s expense. Notwithstanding anything else to the contrary in this Agreement, a party’s obligation to defend, indemnify and hold the other party harmless hereunder is limited to the Indemnifying Party’s payment for the cost of defense of the third party claim incurred by the Indemnifying Party and the payment of (i) any settlements agreed to by the Indemnifying Party in a writing signed by an officer of the Indemnifying Party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
10.4. Options. If Customer’s use of the Solution has become, or in Gremlin’s opinion is likely to become, the subject of any claim of infringement, Gremlin may at its option and expense, (a) procure for Customer the right to continue using and receiving the Solution as set forth hereunder, (b) modify the Solution to make it non-infringing, (c) substitute an equivalent for the Solution, or (d) if Gremlin, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused fees for the remainder of the then-current subscription term as stated on the applicable Order Form.
10.5. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 8 STATES GREMLIN’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
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.
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.
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.
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.
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