Zenoss Cloud Agent End User License Agreement

This Cloud Agent Software EULA is between Zenoss and the person who requires the Agent Software (the “Agent Software”) installed on their client devices allowing all features of the Zenoss Cloud service. If the provided Agent Software is not installed the sync functionality will not be available.

You may not use the Agent Software unless you indicate your acceptance of this EULA, either by clicking “accept” on the Web page where this EULA appears, or by your acceptance at the prompt within the software download install or by downloading and using the Agent Software within your network infrastructure. If the terms of this EULA are not acceptable to you, you may cancel your delivery for the Agent Software license or uninstall the Agent Software from your network infrastructure.

If the individual accepting this EULA does so on behalf of a legal entity, then the individual represents and warrants to Zenoss that he or she has the authority to legally bind that entity to this EULA. The license stated below extends only to the entity that is a party to this EULA and not to that entity’s affiliates.

The Description of Software, Support, and Services (“DOSSS”), as amended is incorporated into this Agreement and can be found at the following URL address: www.zenoss.com/contracts.

1. License. You (the Customer) may use the Agent Software as stated in this license section. You are granted a license to use the Agent Software for your own internal business use, as well as to provide services to your clients. You are not authorized to resell, distribute, or transfer Agent Software licenses to any third party. Customer has no other grants or rights to use, in any way, the Agent Software.

Your license is a subscription license having an initial term as stated in the order for the Cloud Services engagement, or an expressly defined term of a proof of concept (POC) trial engagement, or if no term is stated in the order, one year. On expiration of the initial subscription license term, your license will automatically renew for consecutive renewal terms of one year each until either you, the Reseller or Zenoss gives a written notice of non-renewal at least thirty (30) days prior to the expiration of the initial term, or then current renewal term, as applicable, provided that if your order states different renewal terms, the Cloud Services engagement order will control. You may not transfer or sublicense the Agent Software to, or make the Agent Software available for use by, any person except your employees and your permitted contractors as described in Section 7 (Assignment, Contractors). You may copy the Agent Software as necessary to use the Agent Software in accordance with this EULA, and you may make a reasonable number of backup or archival copies of the Software, but you may not otherwise copy the Software. Your license is non-exclusive and worldwide, subject to applicable export laws. You may not modify the Agent Software or create any derivative works of the Software. You may not reverse engineer, disassemble or de-compile the Agent Software except as permitted by applicable law notwithstanding this restriction, and then on advance written notice to Zenoss of at least 30 days. You may not publish any benchmark or other performance test results regarding the Agent Software. You may not remove any copyright, trademark, or other proprietary notices that appear on or with the Agent Software. The Agent Software includes software that is licensed under open source licenses. License terms, notices, attributions and other information about the open source elements of the Agent Software are available in the licensing file distributed with the Software. If there is a conflict between this EULA and any open source license for software included in the Agent Software, the open source license will control. If you have been provided the Agent Software for use on a “test,” “evaluation,” “lab,” “NFR,” “proof of concept,” “temporary” or similar basis, then your license term is as stated in the written authorization for such use, or if no term is stated, 30 days from the day the Agent Software is provided to you for installation, and you may use the Agent Software only in a non-production environment for the purpose of evaluating the Agent Software for a production license.

2. Termination. This EULA terminates automatically if you violate any license restriction stated in Section 1 (License). Zenoss may terminate this EULA on written notice if you violate any term of this EULA other than the terms stated in Section 1 (License), and you do not cure the failure within thirty (30) days of the notice.

In addition, if you have purchased a subscription license, Zenoss may terminate this EULA on thirty (30) days’ notice if you violate the terms of any order for Cloud Services engagement, Support or Services related to your subscription license, including failing to pay fees when due to Zenoss or the Reseller, and do not cure the failure within thirty (30) days of the notice.

Furthermore, if this EULA is provided in accordance with a proof of concept (POC), then the EULA shall terminate upon the expiration of the POC pilot term period, unless the Customer purchases a subscription license as set forth above.

On termination of this EULA your license to use the Agent Software to collect your system elements terminates. Within two (2) business days of termination of this EULA you must uninstall the Agent Software from your systems, and destroy or render unusable all copies of the Agent Software. On Zenoss’ request, you will certify in writing that you have complied with this Section. Sections 4-8 will survive expiration or termination of this EULA.

4. Warranty and Warranty Disclaimers.

As between you and Zenoss, Zenoss makes no other representation or warranty regarding the Agent Software or Support and each of them are provided AS IS WITH ALL FAULTS. Zenoss does not warrant that your use of the Agent Software will be error free, uninterrupted or completely secure. Zenoss disclaims any implied or statutory warranties, such as a warranty of merchantability, fitness for a particular purpose, lack of malware, and non-infringement, and disclaims any warranty that may arise from a course of dealing.

5. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL ZENOSS, RESELLER, OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR HARM YOU SUFFER THAT COULD HAVE BEEN AVOIDED BY YOUR REASONABLY PROMPT IMPLEMENTATION OF A MAINTENANCE RELEASE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFIT OR LOST SAVINGS (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF ZENOSS, RESELLER AND ANY OF THEIR RESPECTIVE LICENSORS OR SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSES GIVING RISE TO THE CLAIM DURING THE TWELVE MONTHS PRECEDING THE CLAIM.

6. Confidential Information.

6.1 During the term of this Agreement, and for two years following its termination, neither party shall disclose to any third party any information that is clearly marked as “Confidential” or identified in writing to the receiving party as confidential at the time of disclosure, or which would appear, to a reasonable person, to be of a confidential nature (“Confidential Information”), except that the Receiving Party’s obligations with respect to Confidential Information including trade secret information shall survive for as long as such Confidential Information remains a trade secret under the applicable law. In protecting Confidential Information, a receiving party agrees to use the same care that it takes for its own confidential information, but not less than reasonable care. All software, financial information, and other terms and conditions of this Agreement, are Confidential Information.

6.2 The non-disclosure obligations of Section 6.1 shall not apply if the information shall have: (a) first become generally known and published through no fault of the receiving party; (b) been learned by the receiving party from a third party; (c) been already known to the receiving party without violating this or any other confidentiality obligation; or (d) been developed by or for the receiving party, independent of activities under this Agreement. Further, the terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.

6.3 Either party shall disclose any confidential information if legally compelled or required by legal or regulatory process. Prior to any such disclosure, the receiving party shall immediately provide to the disclosing party written notice of that obligation so that the disclosing party may seek a protective order or other appropriate remedy or waive compliance by the receiving party with this clause. In the event that such protective order or other remedy is not obtained, or the disclosing party waives compliance with the provisions of this Agreement relating to the confidentiality and non-disclosure of the confidential information, the receiving party or its representatives may furnish only that portion of the confidential information which, in the opinion of its legal counsel, it is legally required to disclose, and in such case the receiving party shall exercise reasonable commercial efforts to obtain assurance that the confidential information to be disclosed is accorded appropriate confidential treatment.

7. Assignment, Contractors. You may not assign this EULA or sublicense the Agent Software without Zenoss’ prior written consent. The warranties stated above are for your benefit only, notwithstanding Zenoss consent to an assignment or sublicense. You may not allow any person to use the Agent Software other than: (i) your employees and individual contractors acting under your direct supervision, and (ii) the personnel of outsourcers who are performing an internal business function for you and on the condition that the outsourcer has expressly agreed that its use of the Agent Software is subject to this EULA. You remain responsible for your contractors and outsourcers’ use of the Agent Software in violation of the terms of this EULA.

8. General. Except for the license rights expressly granted in this EULA, Zenoss reserves all rights in the Agent Software and its other intellectual property. If you are a government agency, you acknowledge that the Agent Software has been developed at private expense and is provided with RESTRICTED RIGHTS. The parties confirm that they have requested that this agreement be drafted in English. (Les parties contractantes conferment qu’elles ont exigé quele présent contrat et tout les documents associés soient redigés en anglais.) Any notices under this EULA must be given in English. You may not use or transfer the Agent Software in violation of applicable law or regulation, such as export law and regulation. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The use of the word “including” shall be read to mean “including, without limitation.” All references to monetary amounts shall mean United States Dollars unless otherwise indicated. The term “parties,” either in lower- or upper-case form, refers to Zenoss and the person who accepts this EULA. A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. Any requirement in this EULA that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular shall imply the plural as indicated by the context, and pronouns that are gender specific shall be read to refer to either gender. The Section captions in this EULA are for convenience only; they are not part of this EULA and may not be used to interpret the terms of this EULA. In the event one or more of the terms of this EULA are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this EULA as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the EULA. This EULA may be modified only by a written document that expressly refers to this EULA and is signed by the parties. No right or remedy arising in connection with this EULA shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy. A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy. The pre-printed terms on the parties’ purchase orders or other business forms shall have no effect whatsoever. There are no third-party beneficiaries to this EULA. This EULA will be governed by the laws of Texas and United States of America, as applicable. Exclusive venue for an action arising under or in connection with this EULA shall be in Travis County, Texas. This EULA is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces in its entirety any prior or contemporaneous agreement or understanding regarding the subject matter of this EULA, written or oral.