1. Grant of License.
1.1 License. During the term of this Agreement, Tanium grants Customer a revocable, non-transferable, non-exclusive license to use the proprietary software in object code form and related proprietary components provided by Tanium to Customer in connection with this Agreement (the “Licensed Software”) in accordance with the Documentation for Customer’s internal use only during the applicable Licensed Term. The term “Licensed Software” will include Tanium’s then-current documentation made generally available by Tanium to its customer bases for use of the Licensed Software, as updated from time-to-time by Tanium in its discretion (the “Documentation”), and any updates, bug fixes, sensors, scripts, releases, ‘Saved Questions’ and versions (collectively, “Enhancements“) made Generally Available by Tanium and provided by Tanium in connection with a Support Services entitlement or subscription-based license grant to use the Licensed Software (the “License“). The term “Generally Available” or “GA” means a production version of the Licensed Software made available to Tanium’s customer base.
The Licensed Software is licensed to Customer, not sold. The Licensed Software, Documentation, and Services provided by Tanium contain material that is protected by United States copyright, trade secret law, and other intellectual property law, and by international treaty provisions. All rights not expressly granted to Customer under this Agreement are reserved by Tanium. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights, and other intellectual property and proprietary rights in the Licensed Software, Documentation, and Services provided by Tanium whether or not registered will remain the sole and exclusive property of Tanium or its licensors and suppliers, as applicable.
1.2 License Metric. The Licensed Software is licensed on a per Managed OS Instance basis. A “Managed OS Instance” means a physical or virtual hardware device where the Licensed Software can be installed, and where that device is capable of processing data. Managed OS Instances include any of the following types of computer devices: mobile/smart phone, diskless workstation, personal computer workstation, networked computer workstation, homeworker/teleworker, home based system, file server, print server, email server, internet gateway device, storage area network server, terminal servers, or portable workstation connected or connecting to a server or network. In the case of a virtual system, in addition to the virtual Managed OS Instances, the hypervisor is considered to be a single instance if Licensed Software is installed at the hypervisor level.
1.3 System Configuration. Hardware and software requirements for proper installation and use of the Licensed Software are set forth in the relevant Documentation. Customer is solely responsible and fully liable for purchasing, providing, installing, and using all required equipment, networks, peripherals, third party software and hardware, including, but not limited to, third-party software, scripts, or other technologies that may interoperate and be used in conjunction with the Licensed Software, all of which are expressly excluded from all warranty, indemnity and support obligations described elsewhere in this Agreement.
2. Restrictions.Customer’s license to the Licensed Software is subject to the following license conditions and restrictions:
2.1 Customer’s Benefit. Customer must not use or permit the Licensed Software to be used in any manner, whether directly or indirectly, that would enable Customer’s personnel or any other person or entity to use the Licensed Software for anyone’s benefit other than Customer or its Affiliates. Customer must purchase each license it intends to use.
2.2 Limitations on Copying and Distribution. Customer must not copy or distribute the Licensed Software, whether directly or indirectly, except to the extent that copying is necessary to use the Licensed Software for the purposes set forth herein. Customer may make a single copy of the Licensed Software for backup and archival purposes.
2.3 Limitations on Reverse Engineering and Modification. Except to the extent such a limitation is expressly prohibited by applicable law, Customer must not reverse engineer, decompile, disassemble, modify or create derivative works of the Licensed Software whether directly or indirectly.
2.4 Sublicense, Rental and Third -party Use. Except to the extent expressly permitted by this Agreement, Customer must not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Licensed Software, or directly or indirectly permit any third party to use or copy the Licensed Software. Customer must not operate a service bureau or other similar service for the benefit of third parties using the Licensed Software.
2.5 Proprietary Notices. Customer must not remove any proprietary notices (e.g., copyright and trademark notices) from the Licensed Software. Customer must reproduce the copyright and all other proprietary notices displayed on the Licensed Software on each permitted back-up or archival copy.
2.6 Use in Accordance with Documentation. All use of the Licensed Software shall be in accordance with the Documentation and this Agreement.
2.7 Use of the Licensed Software. Customer shall be solely responsible and fully liable for its use of the Licensed Software, including, but not limited to, for ensuring that the use of the Licensed Software is in compliance with all applicable foreign, federal, state and local laws, rules, and regulations.
2.8 Tanium’s Intellectual Property. Customer shall not use the Licensed Software or Tanium Confidential Information whether directly or indirectly to contest the validity of any Tanium intellectual property, including the Licensed Software; any such use of Tanium’s information will constitute a material, noncurable breach of this Agreement.
2.9 Competition. Customer shall not use the Licensed Software or Tanium Confidential Information in a manner to compete with Tanium or to assist a third party in competing with Tanium, or for benchmarking or competitive analysis.
2.10 Notices and Prevention. Customer shall notify Tanium promptly upon learning of any attempt by anyone to misuse, misappropriate, copy, modify, derive, or reverse engineer any Licensed Software and Customer shall cooperate and assist Tanium in discovering, preventing, and recovering damages for any such misappropriation, copying, modification, derivation, or reverse engineering of the Licensed Software.The Licensed Software is licensed to Customer, not sold. The Licensed Software, Documentation, and Services provided by Tanium contain material that is protected by United States copyright, trade secret law, and other intellectual property law, and by international treaty provisions. All rights not expressly granted to Customer under this Agreement are reserved by Tanium. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights, and other intellectual property and proprietary rights in the Licensed Software, Documentation, and Services provided by Tanium whether or not registered will remain the sole and exclusive property of Tanium or its licensors and suppliers, as applicable. Customer shall notify Tanium promptly upon learning of any attempt by anyone to misuse, misappropriate, copy, modify, derive, or reverse engineer any Licensed Software and Customer shall cooperate and assist Tanium in discovering, preventing, and recovering damages for any such misappropriation, copying, modification, derivation, or reverse engineering of the Licensed Software.
3. Affiliates and Managing Parties.The term “Affiliate” means an entity that is controlled by, controls, or is under common control of the Customer, where “control” means the ownership, in the case of a corporation, of more than fifty percent (50%) of the voting securities in such corporation or, in the case of any other entity, the ownership of a majority of the beneficial or voting interest of such entity. Customer may allow its Affiliate(s) to use the Licensed Software provided that (a) the Affiliate only uses the Licensed Software for Customer’s or Affiliate’s internal business purposes and up to the authorized number of Managed OS Instances in accordance with the terms and conditions of this Agreement and (b) Customer is responsible for and remains liable for the Affiliate’s use of the Licensed Software in compliance with the terms and conditions of this Agreement. If Customer enters into a contract with a third party that manages Customer’s information technology resources (“Managing Party”), Customer may allow its Managing Party to use the Licensed Software on Customer’s Managed OS Instances, provided that (a) the Managing Party only uses the Licensed Software for Customer’s internal business purposes and not for the benefit of any third party or for the Managing Party, (b) the Managing Party agrees to comply with the terms and conditions of this Agreement, and (c) Customer is responsible for and remains liable for the Managing Party’s use of the Licensed Software in compliance with the terms and conditions of this Agreement. In addition, Customer shall ensure that its personnel comply with the terms of this Agreement.
4. Term and Termination.Unless otherwise agreed in a Schedule, the License(s) will commence upon the initial delivery of the license keys that allow Customer to download or access the Licensed Software (“Delivery“) and will continue for the term of the applicable License(s) or until this Agreement is terminated as provided in this Section, whichever occurs first (the “Licensed Term“). The Licensed Term will be as set forth in the Schedule. Either party may terminate this Agreement on written notice to the other party if the other party is in material breach of its obligations hereunder and fails to cure the material breach within thirty (30) days of such written notice, or within five (5) days of such written notice in the case of Customer’s breach of Sections 1 (Grant of License) or 2 (Restrictions). Notwithstanding the foregoing, if a material failure is not curable, the non-defaulting party may immediately terminate this Agreement upon written notice to the other party. In addition, if Customer fails to make payments as required hereunder and such failure is not cured within fifteen (15) days of written notice from Tanium, Tanium may immediately cease performing Support Services. Either party may, in its sole discretion, elect to terminate this Agreement on written notice to the other party upon the bankruptcy or insolvency of the other party or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party. Upon any termination or expiration of this Agreement, the Licenses granted in Section 1 (Grant of License) will automatically terminate and Customer will have no further right to possess or use the Licensed Software. Tanium reserves the right to seek all remedies available at law and in equity for Customer’s material breach of this Agreement.
5. Fees and Expenses; Delivery and Taxes.
5.1 Fees and Expenses. Notwithstanding anything else to the contrary, if Customer orders from a Tanium authorized business partner (“Reseller”), final terms of the transaction (e.g., pricing, discounts, fees, payments, and taxes) are solely subject to the agreement between Customer and its Reseller of choice. This Agreement will govern Tanium’s provision of and Customer’s license to the Licensed Software and Services whether Customer orders the Licensed Software and Services from Tanium or a Reseller. Unless Customer orders directly from a Reseller, Customer will pay the Licensed Software and Services fees directly to Tanium and Tanium will fulfill all orders. The parties will enter into a schedule(s) or purchase order(s) that describe the Licensed Software and/or Services to be acquired by Customer (each a “Schedule“). This Agreement applies to any Schedule that references this Agreement. When a purchase order will be utilized as a Schedule, the purchase order must reference and be made pursuant to this Agreement and the applicable Quote. Notwithstanding anything else to the contrary, any terms and conditions in the purchase order that conflict or are inconsistent with the Quote or this Agreement will have no force or effect. The purchase order will not add or remove terms from the Quote or this Agreement. Tanium further reserves the right to expressly reject any purchase order that does not comport to the requirements of this Section.Unless otherwise set forth in a Schedule: (a) fees for Licenses and Services will be billed, due, and payable fully in advance thirty (30) days after Customer’s receipt of an invoice. Payments will be made by electronic transfer to a bank account designated by Tanium on the invoice in the amount of fees for the Licensed Software and Services ordered (less any applicable credits and deductions and plus any applicable taxes, shipping and other charges). The effective date of payment shall be the date on which the entire amount due is credited to Tanium’s bank account or the instrument enabling immediate collection of the entire amount due is received. All payments not made by Customer when due will be subject to late charges of the lesser of (i) one percent (1%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Customer shall pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by Tanium in collecting delinquent fees.
5.2 Taxes. All amounts payable by Customer to Tanium under this Agreement are exclusive of any taxes, levies, or duties, of any nature, that may be assessed by any jurisdiction (collectively “Taxes”). Customer is responsible for paying all Taxes including sales, use, excise, import or export values or fees, stamp duties, foreign withholding (if applicable to paying jurisdiction), value-added, personal property, or any other tax resulting from the delivery, possession, or use of the Licensed Software, purchases of hardware, or performance of any Services hereunder in the execution or performance of this Agreement. Taxes do not include any taxes payable by Tanium for its employees or for its net income.
All Licensed Software will be delivered and accessed electronically. In conjunction with the billing, collection and payment of any Taxes, Customer must provide Tanium with a physical address of the download site for the Licensed Software. This address will be used as the “shipped to address” on all invoices. Customer will pay all Taxes relating to, or under this Agreement, unless Customer is exempt from the payment of such Taxes and provides Tanium with evidence of valid exemption certificate(s). If its tax status changes, Customer must notify Tanium in writing (email is sufficient) at least 30 days in advance of Customer’s next billing cycle. If Tanium becomes entitled to a refund or credit of Taxes previously paid by Customer pursuant to this Section, any such refunded or credited amounts (including any interest received thereon) shall be promptly granted as a credit memo against Customer’s account or, upon Customer’s request, paid over to Customer.
Unless both Customer and Tanium agree otherwise, Customer will make no deduction from any amounts owed to Tanium for any un-invoiced taxes of any type. Subject to applicable laws, Tanium will cooperate with Customer to reduce the amount of applicable withholding taxes and Customer will not take any action that is prejudicial to obtaining an available tax exemption by Tanium. Upon Customer’s written request, Tanium will provide Customer with written proof that it has made all registrations and reports required for these tax payments. If Tanium claims a tax exemption that may affect any obligations of Customer, Tanium will disclose this exemption to Customer on a timely basis and provide Customer with all exemption documentation requested by Customer. If Customer is required to withhold amounts from any payments due to Tanium hereunder as prescribed by applicable law, Customer will make such withholding, remit such amounts to the appropriate taxing authorities. Customer agrees to increase the amount payable as necessary so that after making all required deductions and withholdings, Tanium receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer will indemnify Tanium from and against any disputed taxes, including interest and penalties, on the Licensed Software or Services, by the taxing authorities. If the taxation of the item(s) is disputed by the taxing authorities, Tanium will notify Customer, if practical, to work with Customer and the taxing authorities to minimize any potential deficiencies.
6. Services; Support Services; Systems Information; Premium Services.
6.1 Services. The term “Services” means, collectively, the Support Services, Premium Services, training and any other services acquired by Customer from Tanium. The type, term, and level of Services will be as set forth in the Schedule. If Customer has a current Support Services entitlement or License governed by this Agreement, then Tanium will provide Customer with the support and maintenance services described in Section 6.2 (the “Support Services“). Once the relevant Support Services entitlement or License has expired, Customer has no further right to receive any Support Services. The term of Support Services will be as set forth in the Schedule (the “Support Term“). All Services are provided subject to the terms and conditions of this Agreement. Geographic limitations may apply. Unless otherwise agreed upon in writing by the parties, Support Services will be provided in English only.
6.2 Support Services. Unless otherwise set forth in the Schedule, Tanium will provide the following Support Services to Customer.
6.2.1 General. During the Support Term, Tanium shall provide Customer with reasonable support for the person(s) designated by customer that may contact Tanium for Support Services (“Technical Support Contact(s) “). Customer may contact Tanium for Support Services Monday through Friday, 7 a.m. to 7 p.m. Pacific Standard Time, excluding Tanium holidays. Tanium shall use good faith efforts to work with Customer during Customer’s normal business hours in the time zone in which the Customer is located. Customer may designate up to a maximum of two (2) Technical Support Contacts.
6.2.2 Contacting Tanium. Customer may contact Tanium for Support Services by submitting a request via the internet-based support and maintenance platform for which Customer will register and use to submit Support Requests and access Documentation during the Licensed Term or Support Term, as applicable, (the “Tanium Support Portal“).
6.2.3 Customer’s Obligations. All Customer requests made to Tanium for Support Services in accordance with Section 2 (“Support Requests“) shall be submitted by Customer to Tanium through Customer’s Technical Support Contact(s). Customer may change its designation of Technical Support Contact(s) upon written notice to Tanium.Customer is responsible for: (1) preparing and maintaining their systems (e.g., multi- factor authentication) and facilities in accordance with the Documentation and specifications of the appropriate suppliers; (2) securing all required permits, inspections, and licenses necessary to use the Licensed Software and Support Services; and (3) complying with all applicable laws while using the Licensed Software and Support Services. Customer shall be solely responsible for maintaining all necessary backup and recovery procedures to prevent loss of its data. Customer acknowledges and agrees that Customer is solely responsible for the function, performance, and results achieved in using or accessing content such as sensors, scripts, packages, actions, and ‘Saved Questions’ that Tanium may make available to Customer in connection with the Support Services.
6.2.4 Third-Party Support. Notwithstanding anything else to the contrary in this Agreement, if Customer enters into an agreement with a Reseller under which the Reseller will provide support to Customer for the Licensed Software (“Third-Party Support“), Customer must contact the Reseller, and not Tanium, for support. Customer acknowledges that (i) all terms and conditions related to Third-Party Support are solely subject to the agreement between Customer and the Reseller; and (ii) Tanium has no responsibility or liability for Third-Party Support.
6.3 Systems Information. During the term of the Agreement, Customer may provide to Tanium and/or the Licensed Software and Services may collect, information including, but not limited to, performance and analytics information relating to the operation and use of Tanium’s products and services, metadata relating to Customer’s networks and systems, device identifiers, network telemetry, endpoint telemetry, system configuration, and data generated through any of the foregoing (collectively, “Systems Information“).Customer agrees that Tanium may use Systems Information to provide the Licensed Software and Services and to internally research, develop, and improve Tanium’s products and services, and, on an aggregated and/or anonymized basis, for marketing purposes (the “Permitted Purpose“). To the extent Systems Information constitutes Customer’s Confidential Information, Systems Information will be held in confidence by Tanium in accordance with Section 10 (Confidentiality). For clarity, any data that is derived by Tanium from its use of the Systems Information for the Permitted Purpose, such that the Customer cannot be identified from the derived data, is not considered Customer’s Confidential Information.
Customer, rather than Tanium, determines which types of data, including Personal Data (as defined in the Data Processing Addendum), exists on its systems. To the extent that Tanium obtains Personal Data in connection with providing the Licensed Software and Services, Tanium will process such Personal Data pursuant to the Data Processing Addendum found at https://www.tanium.com/dpa, which is hereby incorporated into and made a part of this Agreement. Because Customer’s endpoint environment is unique in configurations and naming conventions, the Systems Information could potentially include Personal Data. Customer may redact, edit, or otherwise suppress any Systems Information, including Personal Data, prior to providing to Tanium for processing. To the extent any Systems Information includes Personal Data, Customer represents and warrants that it has made all necessary disclosures and has a lawful basis to share the Personal Data with Tanium for the Permitted Purpose. In addition, Tanium may process, use, or disclose such Personal Data only: (i) in furtherance of its obligations pursuant to this Agreement; (ii) as required or permitted by law; (iii) as directed or instructed by Customer; or (iv) with prior informed consent of the data subject to whom the Personal Data pertains. Tanium will implement and maintain reasonable security procedures and practices with respect to Personal Data in accordance with the terms of this Agreement, the Data Processing Addendum, and applicable privacy and data security laws, as pertinent to Tanium in its role as a service provider in the provision of the Licensed Software and Services. As between Customer and Tanium, the foregoing states Tanium’s entire obligation with respect to Personal Data.
6.4 Premium Services. The term, “Premium Services“, means, collectively, any product training purchased by Customer and provided by Tanium with respect to the Licensed Software (“Training“) or any Enterprise Support Services Resource procured by Customer and provided by Tanium in accordance with Appendix A. All Premium Services are provided in accordance with, and governed by, the terms and conditions of this Agreement.
7. Limited Warranty; Disclaimer; Integrations with Third-Party Software and Services.
7.1 Limited Warranty. During the Warranty Period, Tanium warrants that (i) the Licensed Software will operate in substantial conformity with the Documentation; and (ii) it shall use commercially reasonable efforts to screen the Licensed Software prior to Delivery to Customer for viruses, Trojan horses, and other malicious code. The term “Warranty Period” means ninety (90) days from the Effective Date. If the Licensed Term is less than ninety (90) days, the Warranty Period will be for the length of the applicable Licensed Term. The foregoing warranties are solely for the benefit of Customer and Customer shall have no authority to extend such warranty to any third party. The sole and exclusive remedy of Customer, and the sole and exclusive liability of Tanium, for breach of the foregoing warranties in this Section, shall be to repair or replace the non-conforming Licensed Software, or if repair or replacement would, in Tanium’s opinion, be commercially unreasonable, then Tanium shall terminate the relevant licenses and refund to Customer the portion of prepaid license fees paid for such non-conforming Licensed Software. This warranty is contingent upon the proper installation and use of the Licensed Software as described in the Documentation and this Agreement; Tanium shall not be responsible for Customer’s use of the Licensed Software if not operated in a manner recommended in the Documentation. Any modification to the Licensed Software by Customer or any third party or failure by Customer to implement any Enhancements to the Licensed Software may void Tanium’s obligation to provide Support Services and Tanium’s warranties under this Section.In addition, Tanium warrants that any Services will be provided in a professional and workmanlike manner consistent with relevant industry standards. If Tanium breaches the foregoing warranty, Customer’s sole remedy will be to terminate the applicable Services and receive a refund of any prepaid unused fees for such non-conforming Services.
7.2 EXCEPT AS PROVIDED IN THIS SECTION, THE LICENSED SOFTWARE AND ALL SERVICES ARE PROVIDED ON AN “AS-AVAILABLE, ” “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. TANIUM DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL CAUSE CUSTOMER TO BE COMPLIANT WITH APPLICABLE LAW; THAT CUSTOMER’S USE OF THE LICENSED SOFTWARE OR SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS; THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS OR DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. TANIUM DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE OR RESULTS OF THE LICENSED SOFTWARE OR SERVICES. TANIUM DOES NOT PROVIDE WARRANTIES WITH RESPECT TO ANY THIRD-PARTY OR NON-GA PRODUCTS, SCRIPTS, CONTENT, OR OTHER TECHNOLOGIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE, INCLUDING, BUT NOT LIMITED TO, SUGGESTIONS, ROUTINES, SCRIPTS OR QUERIES, PROVIDED BY TANIUM SHALL CREATE ANY ADDITIONAL TANIUM WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF WARRANTIES OR TANIUM’S LIABILITY OR OBLIGATIONS UNDER THIS AGREEMENT. TANIUM HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY PRODUCTS OR TECHNOLOGIES USED BY CUSTOMER WHETHER INDEPENDENTLY OR IN CONJUNCTION WITH THE LICENSED SOFTWARE. If applicable law affords Customer implied warranties, guarantees or conditions despite these exclusions, those warranties will be limited to one (1) year from the Effective Date and Customer’s remedies will be limited to the maximum extent allowed by Sections 7 (Limited Warranty; Disclaimer; Integrations with Third-Party Software and Services) and 9 (Limitation of Liability).
7.3 Integrations with Third-Party Software and Services. Customer acknowledges that the Licensed Software may contain features designed to integrate or interoperate with third-party software or services, that Tanium reserves the right to remove or alter any such Licensed Software features, and that any such removal or alteration does not entitle Customer to any refund, credit, or other compensation. If Customer elects to use third-party software or services with the Licensed Software, Customer grants Tanium permission to allow the third-party software services or its provider to access Customer’s data and information pertinent to Customer’s usage of the third-party software and services as appropriate for the integration or interoperability of such third-party software or services with the Licensed Software.
8. Indemnities.If a third party claims that Customer’s licensed use of the Licensed Software in compliance with the terms of this Agreement infringes a United States: (i) patent, (ii) copyright, or (iii) trade secret of that third party, Tanium, at its sole cost and expense, will defend Customer against any such claim, and indemnify Customer from any damages, liabilities, costs and expenses awarded by a court to the third party claiming infringement or set forth in a settlement agreed to by Tanium. The foregoing obligation of Tanium is contingent upon Customer promptly notifying Tanium in writing of such claim, permitting Tanium sole authority to control the defense or settlement of such claim, and providing Tanium reasonable assistance in connection therewith. If a claim of infringement under this Section occurs, or if Tanium determines a claim is likely to occur, Tanium will have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Licensed Software; (ii) modify the Licensed Software to make it non-infringing, without loss of material functionality; or (iii) replace the Licensed Software with a functionally equivalent, non-infringing software or offering. If either of these remedies is not reasonably available to Tanium, Tanium may, in its sole discretion, immediately terminate this Agreement and return the license fees paid by Customer for the infringing Licensed Software, prorated for use over the lesser of (i) a three (3) year period or (ii) the remaining unused Licensed Term. Notwithstanding the foregoing, Tanium shall have no obligation with respect to any claim of infringement that is based upon or arises out of (each of the following an “Excluded Claim“): (i) the use or combination of the Licensed Software with any third-party or Customer hardware, software, products, data or other materials; (ii) modification or alteration of the Licensed Software by anyone other than Tanium; (iii) Customer’s failure to implement any Enhancement or Workaround that would have avoided the claim; (iv) Customer’s use of the Licensed Software in excess of the rights granted in this Agreement; (v) any third-party components; or (vi) a business method or process that is inherent to Customer’s business. The provisions of this Section state Customer’s sole and exclusive remedy and the sole and exclusive obligations and liability of Tanium and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Licensed Software and/or this Agreement and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed. Customer will indemnify, defend, and hold Tanium harmless from any claim, demand, action, proceeding, judgment, or liability from a third-party claim arising out of an Excluded Claim. Customer’s indemnification obligation is contingent upon Tanium promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim, and providing Customer reasonable assistance in connection therewith.
9. Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TANIUM OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH THE PARTIES EXPRESSLY AGREE SHALL INCLUDE, WITHOUT LIMITATION AND REGARDLESS OF ITS LEGAL CATEGORIZATION, ANY DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, COMPUTER FAILURE AND MALFUNCTION, AND/OR COST OF REPLACEMENT GOODS AND SERVICES OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THE LICENSED SOFTWARE, SERVICES OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS OR ITEMS DISCLAIMED IN SECTION 7 (LIMITED WARRANTY; DISCLAIMER; INTEGRATIONS WITH THIRD-PARTY SOFTWARE AND SERVICES), EVEN IF TANIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN ANY CASE, THE MAXIMUM AGGREGATE LIABILITY OF TANIUM AND ITS LICENSORS AND SUPPLIERS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE OR SERVICES GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING IS INTENDED TO BE AN AGGREGATE LIMIT, NOT PER INCIDENT. THE PARTIES ACKNOWLEDGE THAT ONLY CUSTOMER CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO THEIR OWN NEEDS TO PROTECT THEMSELVES IF AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE REASONS, CUSTOMER AGREES TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGES THAT WITHOUT CUSTOMER’S AGREEMENT TO THESE TERMS, THE FEE CHARGED FOR THE LICENSED SOFTWARE WOULD BE HIGHER. No CAUSE OF action, regardless of form, arising out of any of the transactions under this Agreement may be brought by Customer more than one (1) year after customer is made aware of the circumstances that resulted in such cause of action. In the event Tanium makes a refund or credit under this Agreement, any such monies refunded or credited by Tanium will be applied to the measure of damages subsequently awarded by the court, if any. neither party will seek a duplicate award of damages for any refunded or indemnified monies paid under this agreement.
10. Confidentiality.Each party agrees to hold the other party’s (and that of its affiliates disclosed in connection with this Agreement) Confidential Information in confidence using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all time exercising at least a commercially reasonable degree of care in the protection of such Confidential Information), and not to make each other’s Confidential Information available in any form to any third party (other than their authorized agents) or to use each other’s Confidential Information for any purpose other than as specified in this Agreement (subject in all cases to the rights granted to Tanium in Section 11.2). Each party agrees to take all reasonable steps to ensure that Confidential Information of the other party is not disclosed, used or distributed by its employees, agents, or consultants in violation of the provisions of this Agreement. In addition, Customer must ensure that any Managing Party will hold Tanium’s Confidential Information in confidence and otherwise comply with this Section. “Confidential Information” shall mean, with respect to a party hereto, all information or material disclosed or made available by one party or its affiliates to the other party or its affiliates in connection with this Agreement which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) from all the relevant circumstances should reasonably be assumed to be confidential. Confidential Information includes, but is not limited to, the Licensed Software. Each party’s Confidential Information shall remain the sole and exclusive property of that party. Neither party shall have any obligation with respect to Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party without restrictions on disclosure; (iii) is independently developed by the receiving party without reliance upon or use of the disclosing party’s Confidential Information; or (iv) is approved for release by the disclosing party in writing. Notwithstanding the foregoing, Customer acknowledges and agrees that Tanium may use Customer’s Confidential Information internally at Tanium for sales/support analytics and training. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to seek appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. In the event the parties previously executed a non-disclosure agreement related to Customer’s prospective license of the Licensed Software or Services, the terms of this Section 10 (Confidentiality) will supersede such non-disclosure agreement from and after the Effective Date.
11. Evaluation Software and Feedback.
11.1 Evaluation Software. This Section only applies to Licensed Software designated by Tanium as “Evaluation Software.” Subject to Section 2 (Restrictions), Tanium grants to Customer a non-transferable, non-exclusive limited license to use the Evaluation Software for its internal evaluation and lab purposes only. The term of this license is for a period of thirty (30) days following Delivery of the Evaluation Software (“Evaluation Period”). Tanium may extend the Evaluation Period in writing at its discretion. Unless otherwise agreed in writing by Tanium, Customer agrees to use the Evaluation Software in a nonproduction environment. Customer bears the sole risk of using the Evaluation Software. TANIUM PROVIDES THE EVALUATION SOFTWARE TO CUSTOMER “AS-IS” AND GIVES NO REPRESENTATION, WARRANTY, INDEMNITY, GUARANTEE OR CONDITION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM’S TOTAL AGGREGATE LIABILITY AND THAT OF ITS LICENSORS, SUPPLIERS, AND PARTNERS IS EXPRESSLY LIMITED TO FIVE HUNDRED DOLLARS ($500) FOR ANY AND ALL DAMAGES REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY. Because the Evaluation Software is provided “AS-IS,” Tanium may not provide Services for it. This Section supersedes any inconsistent term in the Agreement for purposes of the Evaluation Software.
11.2 Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Tanium with respect to its products and services, including the Licensed Software. Feedback is voluntary and Tanium is not required to hold it in confidence. Tanium may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants Tanium an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Tanium’s business, including enhancement of the Licensed Software.
11.3 Beta Software. If the Licensed Software released to Customer has been identified by Tanium as “Beta Software,” then the provisions of Section 11.1 (Evaluation Software) will apply, in addition to this Section 11.3. Customer is under no obligation to use any Beta Software; doing so is in Customer’s sole discretion. Because Beta Software can be at various stages of development, operation and use of the Beta Software may be unpredictable. Customer acknowledges and agrees that: (1) Beta Software has not been fully tested; (2) use or operation of Beta Software should not occur in a production environment; (3) Customer’s use of Beta Software will be for purposes of evaluating and testing new functionality and providing Feedback to Tanium; and (4) Customer will inform its personnel regarding the nature of the Beta Software. In addition, Tanium has no obligation to Customer to (1) further develop or release the Beta Software or (2) provide Services for the Beta Software. If Tanium releases another version of the Beta Software, Customer will return or destroy all prior version(s) or release(s) of the Beta Software that it received from Tanium.
12. Governing Law/Jurisdiction.This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the State of Washington, if you purchased the Licensed Software and Services in the United States or Canada, or (b) in England and Wales if you purchased the Licensed Software and Services in any country other than the United States or Canada, unless another local law is required to be applied. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. The state or federal courts of competent jurisdiction located in King County, Washington, when the laws of Washington apply, and the courts of London, England when the laws of England and Wales apply, shall each have exclusive jurisdiction over all disputes relating to this Agreement.
13. General.This Agreement, together with the Data Processing Addendum, Schedules and any exhibits attached hereto, constitutes the entire understanding and agreement between Tanium and Customer with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, including without limitation pre-printed terms and conditions on Customer’s purchase order, with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Tanium to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. All notices, demands, or consents given under this Agreement will be in writing, signed by or on behalf of the party giving notice, and addressed to Tanium, “Attention Legal Department”, at the corresponding address, or to Customer, at the contact information Customer provided when purchasing the Licensed Software and Services. Notices will be considered when delivered personally, or three (3) days after deposit in the mail (registered mail), or one (1) day after being sent by overnight courier. There are no intended or implied third-party beneficiaries of this Agreement. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (Restrictions), 4 (Term and Termination), 5 (Fees and Expenses; Delivery and Taxes), 6.2 (Systems Information) 9 (Limitation of Liability), 10 (Confidentiality), 11.2 (Feedback), 12 (Governing Law/Jurisdiction), 13 (General), 15 (U.S. Government Rights), 16 (Audit), 17 (Force Majeure), 18 (Construction), and Customer’s indemnity obligations hereunder. Tanium may assign any of its rights or obligations hereunder as it deems necessary. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
14. Export or Import.Customer acknowledges that the Licensed Software and Services, which contain encryption, is subject to the export, import, economic sanctions, and trade restriction laws, regulations and requirements of the United States and other countries including European Union regulations. Tanium will reasonably cooperate, in Tanium’s discretion, in assisting Customer with respect to an application for any required export or import licenses and approvals; however, Customer agrees and acknowledges that it is Customer’s ultimate responsibility to comply with all export and import laws and that Tanium has no further responsibility after the initial sale to Customer within the original country of sale, including Customer’s importation of the Licensed Software and Services into other countries. Without limiting the foregoing, Customer agrees that it will not export, re-export, re-transfer, or provide access to the Licensed Software and Services to any person, in any jurisdiction, or to any user that would create a licensing requirement under U.S. Export control and economic sanctions laws, regulations and requirements without first obtaining any such license. Customer will not export to, or use the Licensed Software and Services in, any country not supported by Tanium, including, but not limited to, embargoes and sanctioned countries as promulgated by the United States Government. Customer shall defend, indemnify, and hold harmless Tanium from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of or relating to any claim the Licensed Software and Services were imported, exported, accessed, or otherwise shipped or transported by Customer in violation of applicable laws, rules, and regulations as described in this Section.
15. U.S. Government Rights.The Licensed Software is commercial computer software as described in DFARS 252.227-7014(a) (1) and FAR 2.101. If acquired by or on behalf of the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
16. Audit.During the term of this Agreement and for one (1) year thereafter, no more than once in any twelve (12) month period, Tanium may audit Customer’s use of the Licensed Software (“Audit”). An Audit will generally consist of Customer providing a system-generated deployment report evidencing Customer’s deployment of the Licensed Software. An Audit may also include the inspection and review of computers or servers on which the Licensed Software has been installed or hosted, and Customer’s compliance with the terms of this Agreement. Tanium (or an auditor retained by Tanium) shall provide Customer at least five (5) days’ advance notice of an Audit. Customer will reasonably cooperate with Tanium and any auditor retained by Tanium in the conduct of the Audit. Audits will be conducted during Customer’s normal business hours. The cost of the Audit shall be borne by Tanium, unless the Audit reveals a breach of this Agreement by Customer, in which case the reasonable cost of the Audit shall be paid by Customer. Customer will immediately remit payment for any Licensed Software deployed in excess of the Licensed Software licenses purchased by Customer under this Agreement.
17. Force Majeure.Except for Customer’s payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions. 18. Construction. This Agreement has been negotiated and approved by the parties and, notwithstanding any rule or maxim of law or construction to the contrary, any ambiguity or uncertainty will not be construed against either of the parties by reason of the authorship of any of the provisions of this Agreement.
Appendix A Enterprise Support Services Resource1. Enterprise Support Services Resources.
1.1 General. Tanium Enterprise Support Services Resource(s) may be obtained from Tanium at its then-current list price or mutually negotiated price during the relevant Enterprise Support Services term, the length as specified in the Agreement or Schedule (“ESR Support Term”). The Enterprise Support Services Resource (“ESR”) will be available to provide Enterprise Support Services for a specified period of time, as determined by Tanium, during the ESR Support Term, which may consist of remote and onsite support. If applicable, unless otherwise set forth in the Agreement or Schedule, Tanium and Customer will determine the number of site visits required during the ESR Support Term. A site visit will generally be based on an eight (8) hour workday, during normal business hours, but a particular visit may vary based on the specific needs of the Customer that can reasonably be accomplished in a business workday. If Customer purchases Tanium Enterprise Support Services, Tanium will provide an ESR to Customer in accordance with the following terms and conditions.
The ESR may:
- act as a primary Tanium console operator in a staff augmentation capacity for the Customer;
- help plan, communicate and monitor the status, health and challenges associated with installation and deployment of components of the Service in Customer’s environment;
- provide consolidated reporting of current deployment status to Tanium’s senior technical and sales leadership and designated Customer representatives;
- maintain ongoing technical relationships with Customer and provide weekly reporting to Tanium’s senior technical and sales leadership and designated Customer representatives;
- track all tickets, bugs, feature requests, improvement requests and ongoing communications regarding the Service within the customer’s environment; and
- observe ongoing operations for potential problems and improvements; such observations will be brought to the attention of Tanium’s senior technical and sales leadership and designated Customer representatives.
The ESR will not and the Customer shall ensure that its personnel do not request that an ESR:
- create custom content such as sensors, packages, and ‘Saved Questions’ for the Service;
- execute an action (e.g., deploying a patch) using the Service without the advance written review and approval by a designated Customer representative;
- use the Service to perform any incident response services;
- use any destructive content (e.g., file delete action) on behalf of the Customer;
- act in a capacity to directly support the underlying operating system, hardware, network or other involved hardware or software on which the Tanium instance is running or dependent; or
- change any settings, undertake Tanium server or client tuning or conduct advanced troubleshooting without direct instruction from the assigned primary TAM or such delegate as assigned by said primary TAM.
Customer acknowledges and agrees that the timeline for the ESR to on-board at Customer’s location is approximately thirty (30) to ninety (90) days from the order date (“On-Boarding Period”). During the On-Boarding Period, Tanium will assign an interim support resource, which may be the TAM, to facilitate the Enterprise Support Services until the parties agree upon the individual to be placed as the ESR. Tanium and Customer will work together in good faith to select the ESR. In the event Customer rejects the ESR candidate or delays in the selection of a reasonable candidate Tanium has offered for consideration, Tanium will assign an interim ESR. The ESR will work during normal business hours or as mutually agreed upon between Tanium and Customer. The ESR may be required to be out-of-the-office due to PTO, illness, holidays, training, vacations or meetings. During this time out-of-the-office, or should the ESR’s employment with Tanium end, Tanium may provide to Customer an interim support resource that will support Customer until the ESR returns or a new ESR is designated by Tanium through the ESR Support Term. In all instances, an interim support resource will provide Enterprise Support Services remotely and may be a shared resource.
Customer acknowledges that any delay in the selection of an ESR candidate may: (1) result in Customer not being able to have its desired individual perform the Enterprise Support Services; (2) result in the use of an interim support resource; and (3) hinder the performance of the Enterprise Support Services as described herein. Customer also acknowledges that it might not be possible to retain a particular individual for the ESR Support Term. Customer will not receive any refunds or credits for any period in which an interim support resource is utilized.
1.2 Customer Responsibilities. While Tanium endeavors to complete Enterprise Support Services in a reasonable period of time, certain factors are beyond Tanium’s control, including Force Majeure Events and delays caused by third parties and Customer. Tanium shall not be responsible for any delays or liabilities resulting from such factors. In addition to any Customer responsibilities set forth in the Agreement, to facilitate prompt and efficient completion of the Enterprise Support Services, Customer and its personnel shall cooperate fully with Tanium and its personnel in all respects, including, without limitation, providing information as to Customer requirements, providing access to the equipment/hardware on which the components of the Service is or will be installed, and providing access to all necessary information regarding Customer’s systems. Customer shall be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Service. In addition, Customer is responsible for providing the ESR with all access, materials, credentials, escorts, or any other thing necessary to conduct the Support Services described herein.
In addition, Customer will assign an action reviewer/approver to act in as the final Tanium Action Approver for all Tanium Actions submitted by the ESR who will have final approval authority for all actions issued in the Tanium console; and enable action approver within the Tanium console and enforce the use thereof.
1.3 Scope and Progress Meeting. Tanium and Customer will develop a mutually acceptable work plan for any services that are beyond the scope of Enterprise Support Services set forth above. Customer will appoint a senior-level technology professional to serve as a liaison with the ESR. Customer’s representative and the ESR will meet once a week to discuss the status and progress of all work related to the Enterprise Support Services.
1.4 Remote Support. Certain Support Services may be provided remotely via telephone or electronic communications. Customer agrees that Tanium resources may access Customer’s systems during the relevant ESR Support Term, using a defined standard virtual private network (VPN). If a network connection between Tanium and Customer’s systems is required for Tanium to perform the Enterprise Support Services, Customer will provide such access as follows:
- Customer is responsible for ensuring that (i) its network and systems comply with specifications provided by Tanium; (ii) all components of Customer’s Tanium environment are accessible through the VPN; and (iii) the VPN is installed in a timely manner for Tanium to perform the Support Services.
- Customer is responsible for acquiring and maintaining any equipment and performing any activities necessary to set-up and maintain network connectivity at and to Customer’s Tanium environment.
- Customer will provide and maintain user accounts for, and access to, the VPN for the Tanium resources, including, but not limited to, Tanium’s onsite and remote resources.
- Tanium is not responsible for network connection issues, problems or conditions arising from or related to network connections, such as bandwidth issues, excessive latency, network outages, and/or any other conditions that are caused by an internet service provider, or the network connection. If Customer’s VPN client software and/or VPN infrastructure fails to allow Tanium access to perform Support Services, Customer agrees to pay for any increased costs resulting from such failure.
[End of Agreement]