The Software and Third Party Software are licensed and not sold to Licensee. Rancher and its suppliers exclusively own all Intellectual Property Rights in and to the Software and Third Party Software, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. No title or ownership or the Intellectual Property Rights passes under this Agreement, and all rights not expressly granted to Licensee in this Agreement are reserved. Licensee may provide suggestions or improvements to Rancher in connection with this Agreement (“Feedback”). Rancher shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software any such Feedback.
Rancher warrants that the Software, will operate substantially in accordance with this Agreement and the Documentation for ninety (90) days from the earlier of the date of first download of the Software. Licensee’s exclusive remedy and Rancher’s sole liability for breach of this warranty is that Rancher shall, at its own expense, use commercially reasonable efforts to correct or replace the Software. This warranty will only apply if there is no modification, alteration or addition has been made to the Software by any person other than Rancher or its authorized agents. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, RANCHER AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. LICENSEE AGREES THAT NEITHER RANCHER NOR ITS SUPPLIERS MAKES ANY WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS. EXCEPT AS STATED ABOVE, RANCHER AND ITS SUPPLIERS PROVIDE THE SOFTWARE ON AN “AS IS” BASIS. Rancher provides no warranties with respect to Third Party Software and Open Source Software. Licensee shall have the benefit of any third party warranties, service agreements and infringement indemnities contained in the purchase agreements or licenses applicable to the Third Party Software and Open Source Software.
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, RANCHER’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO RANCHER DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. “Excluded Claims” means any claim arising from a breach of Section 2.1 (Grant of License), 2.3 (License Restrictions) or 8 (Confidential Information). The parties agree that the limitations specified in this Section 6 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Rancher shall defend at its own expense any claims, demands or suits (“Claims”) brought against Licensee by a third party alleging that the Software, when used as authorized under this Agreement, infringes upon any third party U.S. copyright or U.S. patent registered or issued as of the date of first download of the Software. Rancher shall pay those costs and damages finally awarded against Licensee in connection with such Claims, or those costs and damages agreed to in a monetary settlement of such action provided that Licensee: (i) notifies Rancher promptly in writing of the Claims; (ii) gives Rancher sole control of the defense and settlement negotiations; and (iii) cooperates and, at Rancher’s request and expense, assists in such defense. This Section 7 states Rancher’s entire liability and licensee’s sole and exclusive remedy for any Claims. If the Software becomes, or in Rancher’s opinion is likely to become, the subject of an infringement claim, then Rancher may (at its option and expense) either: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing; or (c) terminate Licensee’s rights hereunder to use the Software and refund a portion of any price Licensee paid under this Agreement prorated over a three year period from the date of purchase. The foregoing obligations of Rancher shall not apply: (1) if the Software is modified by any party other than Rancher, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software is combined with products or processes not specified in the Documentation or provided by Rancher, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software; (4) to any unsupported release of the Software; (5) to any third-party code contained within the Software; or (6) if Licensee settles or makes any admissions with respect to a claim without Rancher’s prior written consent. THIS SECTION 7 SETS FORTH RANCHER’S AND ITS SUPPLIERS’ SOLE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Software and Documentation are the “Confidential Information” of Rancher. Each party agrees (i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
Rancher may use Licensee’s name, logo and marks to identify Licensee as a customer of Rancher on Rancher’s website and other marketing materials.
The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Software is provided to any federal, state or local government agency only subject to the terms and conditions of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.
This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The federal and state courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. All notices, under this Agreement must be delivered in writing by courier, by facsimile or by certified or registered mail (postage prepaid and return receipt requested) and shall be effective upon the earlier of receipt or three (3) business days after being deposited in the mail as required above. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship 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. Licensee may not assign or transfer this Agreement or its rights and obligations under this Agreement. Licensee agrees not to export the Software in violation of the laws and regulations of the United States or any other nation. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. This Agreement may be amended only by a written document signed by both parties. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the extent necessary to make it valid and enforceable and the remaining provisions shall continue in full force and effect. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Licensee’s form of purchase order, acknowledgment or other business forms notwithstanding Rancher’s acceptance or acknowledgment of such business forms. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Rancher may use the services of subcontractors and permit them to exercise the rights granted to Rancher in furtherance of Rancher’s performance under this Agreement, provided that Rancher remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Rancher as required under this Agreement.