Last Updated: July 28, 2020
1. In General. In connection with the Service Offering, Provider will use certain software licensed to Provider by Tanium Inc. (“Tanium”) (such software, the “Tanium Software”). At the direction of Provider, Service Offering End User shall install the client software part of the Tanium Software onto its endpoints so that Provider can provide the Service Offering. Service Offering End User’s use of the Service Offering will indicate its agreement to these terms (“Agreement”).
2. Restrictions. Service Offering End User shall not: (i) use the Tanium
Software other than as expressly permitted in this Agreement; (ii) download, reproduce, copy, alter, adapt, modify, improve, translate, create derivative works from, reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know-how underlying the Tanium Software; (iii) sublicense, resell, sublease or transfer any of its rights in this Section or otherwise use the Tanium Software for the benefit of any third party or use the Tanium Software to develop a product that is similar to the Tanium Software or to operate a service bureau; (iv) use the Tanium Software in any manner or for any purpose not expressly authorized herein or in violation of applicable law; and (v) remove any proprietary notices or disclaimers from the Tanium Software, including, but not limited to, copyright and trademark notices. Service Offering End User shall hold the Tanium Software in strict confidence and not disclose it to any unauthorized party.
3. Intellectual Property; Feedback. The Tanium Software is licensed, not sold. It is protected by United States copyright, trade secret law, and other intellectual property law, and by international treaty provisions. All rights not expressly granted in this agreement are reserved by Tanium and its third- party licensors and suppliers. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights, and other intellectual property and proprietary rights in the Tanium Software will remain the sole and exclusive property of Tanium and its relevant licensors and suppliers. Service Offering End User may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Provider or Tanium with respect to the Tanium Software. Feedback is voluntary and neither Provider nor Tanium is 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 Service Offering End User’s intellectual property rights to make use of the Feedback, Service Offering End User hereby grants Tanium an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with the Tanium Software.
4. Third-Party Components. The Tanium Software and updates thereto may
contain certain third-party components (“Third-Party Components”) that are provided under terms and conditions which are different from this Agreement, or which require Tanium to provide users with certain notices and/or information. A list of the Third-Party Components and the applicable terms and conditions and notices are available at https://tanium.github.io/opensource/ (“Third-Party Licenses”). Use of each Third-Party Component that contains or is accompanied by its own license agreement is subject to the terms and conditions of such other license agreement, and not this Agreement. Notwithstanding the foregoing, the following terms and conditions apply to all “Third-Party Components”: (i) all Third-Party Components are provided on an “AS IS” basis; (ii) Tanium will not be liable to Service Offering End User or indemnify Service Offering End User for any claims related to the Third-Party Components; and (iii) Tanium will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third-Party Components. Except as may be provided in the Third-Party Licenses, Service Offering End User’s sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third-Party Components is to cease use of the Services utilizing the Third-Party Components.
5. Disclaimers; Exclusion of Damages. Service Offering End User acknowledges and agrees that Tanium has no liability whatsoever for the Services furnished by Provider. Provider is solely responsible for provision of the Services. No Provider is authorized to make any warranties or representations regarding the Tanium Software. THE TANIUM SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE TANIUM SOFTWARE, 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 TANIUM SOFTWARE WILL MEET SERVICE OFFERING END USER’S REQUIREMENTS, OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER SHALL CREATE ANY WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF TANIUM’S OBLIGATIONS HEREUNDER. IN NO EVENT WILL TANIUM BE LIABLE TO SERVICE OFFERING END USER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE TANIUM SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. SERVICE OFFERING END USER AGREES THAT 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.
6. Export. Service Offering End User acknowledges that the Tanium Software is
subject to the export control, economic sanctions, and import laws, regulations and requirements of the United States and other countries including European Union regulations. Without limiting the foregoing, Service Offering End User agrees that it will not export, re-export, or re-transfer the Tanium Software in contravention of the foregoing, or provide service to any person, in any jurisdiction, or for 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.
7. U.S. Government Rights. The Tanium 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 any 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.
8. 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 Service Offering End User’s use of the Tanium Software (“Audit”). An Audit may include, without limitation, the inspection and review of computers or servers on which the Tanium Software has been installed or hosted, and records, procedures or business practices that relate to Service Offering End User’s performance under and compliance with the terms of this Agreement. Tanium (or an auditor retained by them) shall provide Service Offering End User at least five (5) calendar days advance notice of an Audit. Service Offering End User will reasonably cooperate with Tanium and any auditor retained by it in the conduct of the Audit. Audits will be conducted during Service Offering End User’s normal business hours. The cost of the Audit shall be borne by Tanium, unless the Audit reveals a material breach of this Agreement by Service Offering End User, in which case the reasonable cost of the Audit shall be paid by Service Offering End User.
9. Third-Party Beneficiary. Tanium shall be deemed to be a third-party beneficiary of this Agreement, with the right to directly enforce its terms.
10. Choice of Law; Venue. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding that body of law applicable to choice of law. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in San Francisco, California and the parties submit to the personal jurisdiction of such courts for purposes of any action or proceeding.