Last Updated: September 2021
IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS BELOW, DO NOT ACCESS, INSTALL, OR USE THE SERVICE. BY ACCESSING, INSTALLING OR USING THE SERVICE, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT IT IS LEGALLY BOUND BY ITS TERMS. THE PERSON ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT HE OR SHE (1) HAS FULL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT; AND (2) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. BY CLICKING THROUGH OR OTHERWISE ACCEPTING THIS AGREEMENT ELECTRONICALLY, INCLUDING BY ACCESSING, INSTALLING, OR USING THE SERVICE, CUSTOMER IS CONSENTING TO THE USE OF ELECTRONIC DELIVERY OF DOCUMENTS AND AN ELECTRONIC SIGNATURE, AND AGREES THAT SUCH ELECTRONIC SIGNATURE IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BINDING TO THE SAME EXTENT AS ORIGINAL SIGNATURES.
This Subscription Agreement (the “Agreement“) is entered into by and between Tanium and the end user customer (hereinafter “Customer“), to permit the use of the Service and Support, as defined herein. The “Effective Date” of the Agreement and license(s) granted under this Agreement will be the earlier of the date set forth in the Schedule or the date on which Tanium initially delivers an email that contains Customer’s unique Service instance credentials that allow the Customer to access the Service. “Tanium” means the Tanium entity listed or identified on the current approved Tanium-provided quote for the Service and/or Support (the “Quote“), or otherwise communicated to the Customer by Tanium. Tanium and Customer may be referred to collectively as the “parties” or individually as “party.”
1. Grant of License.
1.1 License. Subject to the terms and conditions of this Agreement, Tanium grants Customer a revocable, non-transferable, non-exclusive, term-based license (“Subscription License“) to access and use the internet-based service, and to access, use and copy the proprietary software in object code form and related proprietary components, APIs, sensors, scripts, packages, actions, and ‘Saved Questions’ made Generally Available by Tanium and provided by or on behalf of Tanium to Customer in connection with this Agreement, as may be updated by Tanium from time to time (the “Service“) in accordance with the Documentation for Customer’s internal use only during the applicable Service Period (as defined in Section 4). The term “Service” includes Tanium’s then-current documentation made available by Tanium for use of the Service, as updated from time-to-time by Tanium in its discretion (the “Documentation“). During the Service Term, Tanium may also provide Customer with non-GA materials including ‘Labs’ content, sensors, scripts, releases, and ‘Saved Questions’ (the “Support Materials “). Customer may use the Support Materials during the applicable Service Term only as needed for Customer to use the Service. The term “Generally Available” or “GA” means a production version of the Service made available to all of Tanium’s customer base, but specifically excludes Support Materials including any content marked as ‘Lab’ or ‘Community’.
The Service and Support Materials are licensed to Customer, not sold. The Service, Documentation, Support Materials, and Services provided by Tanium contain material that is protected by copyright, patent, 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 Service, Support, and Support Materials provided by Tanium, whether or not registered, will remain the sole and exclusive property of Tanium or its suppliers, as applicable.
1.2 License Metric. The Service is licensed on a per Managed OS Instance basis. A “Managed OS Instance” means a physical device or virtual machine where the Service can be installed, and where that device is capable of processing data. Managed OS Instances include: mobile/smart phone, diskless workstation, personal computer workstation, networked computer workstation, homeworker/teleworker, home-based system, file server, print server, e-mail server, internet gateway device, storage area network server, terminal servers, portable workstation connecting to a server or network, or container (host and/or constituent container). Certain Tanium modules may be licensed and charged on a per container basis, as more fully set forth in the Quote or Schedule. In the case of a virtual system, in addition to the virtual Managed OS Instance(s), the hypervisor is considered to be a single Managed OS Instance if the Service is installed at the hypervisor level.
Customer acknowledges that the Service includes access to certain software to be installed on Customer’s Managed OS Instances, all of which is included in the defined term, “Service.”
1.3 System Configuration. Hardware and software requirements for proper installation and use of the Service 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, scripts, or other technologies that may interoperate and be used in conjunction with the Service, all of which are expressly excluded from all warranty, indemnity and support obligations described elsewhere in this Agreement.
1.4 Customer Data. Customer Data. As between the parties, Customer and its licensors, partners, or suppliers will retain all right, title and interest (including any and all intellectual property rights) in and to any data or data files of any type that are uploaded by or on behalf of Customer to the Service (“Customer Data”). Customer hereby grants to Tanium a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the Service and Support to Customer under this Agreement. Customer will ensure that its use of the Service and Support and all Customer Data is at all times compliant with this Agreement, Customer’s privacy policies, and all applicable local, state, federal and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to Tanium that Customer has sufficient rights in the Customer Data to grant the rights granted to Tanium in this Section and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy, or other rights of any third party.
2. Restrictions. Customer’s Subscription License to the Service is subject to the following license conditions and restrictions:
2.1 Customer’s Benefit. Customer must not use or permit the Service 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 Service for anyone’s benefit other than Customer or its Affiliates. Customer must purchase each license it intends to use. Use of and access to the Service is permitted only by Customer-designated personnel (“Users“).
2.2 Limitations on Copying and Distribution. Customer will not copy or distribute the Service whether directly or indirectly except to the extent that copying is necessary to use the Service for the purposes set forth herein.
2.3 Limitations on Reverse Engineering and Modification.Except to the extent such a limitation is expressly prohibited by applicable law, Customer will not reverse engineer, decompile, disassemble, modify, or create derivative works of the Service whether directly or indirectly.
2.4 Sublicense, Rental and Third-party Use. Except to the extent expressly permitted by this Agreement, Customer will not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Service, or directly or indirectly permit any third-party to use or copy the Service. Customer will not operate a service bureau or other similar service for the benefit of third parties using the Service.
2.5 Proprietary Notices. Customer will not remove any proprietary notices (e.g., copyright and trademark notices) from the Service. Customer shall reproduce the copyright and all other proprietary notices displayed on the Service on each permitted back-up or archival copy.
2.6 Use in Accordance with Documentation. All use of the Service must be in accordance with the Documentation, Tanium’s Acceptable Use Policy made available at http://www.tanium.com/aup (“AUP”), and this Agreement.
2.7 Use of the Service. Customer is solely responsible and fully liable for its use of the Service, including, but not limited to, for ensuring that the use of the Service is in compliance with all applicable foreign, federal, state, and local laws, rules, and regulations. Customer will not interfere with, or disrupt the integrity or performance of the Service, or any data or content contained therein or transmitted thereby; or access the Service (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, or any other similar data mining tools) other than software or Service features provided by Tanium expressly for such purposes.
2.8 Tanium’s Intellectual Property. Customer must not use the Service or other Tanium Confidential Information whether directly or indirectly to contest the validity of any Tanium intellectual property, including the Service; any such use of Tanium’s information will constitute a material, non-curable breach of this Agreement.
2.9 Competition. Customer must not use the Service or Tanium Confidential Information in a manner to compete with Tanium, to assist a third-party in competing with Tanium, or for benchmarking or competitive analysis.
2.10 Credential Protection; Authentication. Customer will require that all Users keep user ID and password information (“Credentials”) strictly confidential and not share such information with anyone, including any other User. Customer agrees that neither Tanium nor its suppliers have any liability under this Agreement for actions taken using Customer’s Credentials, including any unauthorized use or access caused by misuse or misappropriation of such Credentials. Customer will be responsible for initiating and facilitating the removal of Service access by any User who is no longer authorized to access the Service. Customer will use security assertion markup language 2.0 and multi-factor authentication when accessing the Service, unless other related security measures are required in the Documentation. Customer will notify Tanium promptly upon learning of any attempt by anyone to misuse, misappropriate, copy, modify, derive, or reverse engineer any Service and Customer shall reasonably cooperate and assist Tanium in discovering, preventing, and recovering damages for any such misappropriation, copying, modification, derivation, or reverse engineering of the Service.
2.11 Prohibited Data. Customer will not use the Service to store, maintain, process, or transmit any sensitive or special data that might impose specific data security or data protection obligations on Tanium, including, without limitation (i) “protected health information” as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), (ii) “cardholder data” as defined under the Payment Card Industry Data Security Standard (PCI DSS); or (iii) “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act of 1999, in each case as such Acts and standards have been or may be supplemented and amended from time to time.
3. Affiliates and Managing Parties. The term “Affiliate” means an entity that is controlled by, controls, or is under common control of a party, 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 Service and Support Materials provided that (a) the Affiliate only uses the Service and Support Materials 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 Service and Support Materials 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 Service and Support Materials on Customer’s Managed OS Instances, provided that (a) the Managing Party only uses the Service 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 Service and Support Materials 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. The Subscription License will commence upon the Effective Date and will continue for the duration of the Subscription License term or until this Agreement is terminated as provided in this Section, whichever occurs first(the “Service Period”). The term of the Service Period will be as set forth in the Schedule. Either party may terminate this Agreement or any Schedule 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 if Customer fails to make payments as required in this Agreement or Customer breaches 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. 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 expiration of the Subscription License or any termination or expiration of this Agreement, the Subscription License granted in Section 1 (Grant of License) will automatically terminate and Tanium shall (at Customer’s election) destroy or return to Customer all Customer Data in its possession or control that Tanium processes as a data processor. If Customer does not notify Tanium of its election within thirty (30) days following termination or expiry of the Agreement, then Tanium shall automatically destroy all such Customer Data. Tanium shall not destroy Customer Data to the extent (i) it is required by applicable law to retain some or all of Customer Data, or (ii) Customer Data was archived on back-up systems, which Customer Data Tanium shall use commercially reasonable efforts to securely isolate and protect from any further processing except to the extent required by such law. 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 and Customer’s license to the Service and Support whether Customer orders the Service and Support from Tanium or a Reseller. Unless Customer orders directly from a Reseller, (i) Customer will pay the Service and Support fees directly to Tanium and Tanium will fulfill all orders; and (ii) the parties will enter into a schedule(s) or purchase order(s) that describe the Service and any Support 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 the applicable Quote and this Agreement, which will be deemed incorporated by such reference. 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 Service will be billed on an annual basis, payable in advance; and (b) all amounts to be paid by Customer are due and payable 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 Service and Support 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 Service, Support, or purchases of hardware. Taxes do not include any taxes payable by Tanium for its employees or for its net income.
All Service will be delivered and accessed electronically. In conjunction with the billing, collection and payment of any Taxes, Customer may provide Tanium with a primary place of use for the Service. This address will be used as the “shipped to address” on all invoices. If Customer does not provide a primary place of use then Customer’s purchase order “ship to address” will be used for these purposes. 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 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 Service and/or Support 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. Support; Personal Data and Systems Information; Supplemental Support and Training.
6.1 Support. The term, “Support”, means, collectively, the Support Services, Supplemental Support, Training, and any other services acquired by Customer from Tanium, all of which are provided in accordance with, and governed by, the terms and conditions of this Agreement. The type, term, and level of Support are as set forth in the applicable Schedule. With respect to the Service, the support and maintenance described below in Section 6.2 (“Support Services”) that are provided during the Service Period. Geographic limitations may apply. Unless otherwise agreed upon in writing by the parties or expressly stated in the Documentation, Support Services will be provided in English only.
6.2 Support Services. Unless otherwise set forth in a Schedule, Tanium will provide the following Support Services to Customer.
6.2.1 General. During the Service Period, 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 to resolve any issues raised by Customer. 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 Support Services platform for which Customer will register and use to submit Support Requests and access Documentation during the Service Period (the “Tanium Support Portal”).
6.2.3 Customer’s Obligations. All Customer requests made to Tanium for Support Services in accordance with Section 6.2 (“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 Service; and (3) complying with all applicable laws while using the Service.
Customer acknowledges and agrees that Customer is solely responsible for the function, performance, and results achieved in using or accessing any Support Materials that Tanium may make available to Customer in connection with 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 or maintenance to Customer for the Service (“Third-Party Support”), Customer must contact the Reseller, and not Tanium, for support and maintenance. 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 Personal Data and Systems Information.
6.3.1 Personal Data. Customer, rather than Tanium, determines which types of data, including Personal Data (as defined in the Data Processing Addendum), exists within its endpoint environment, and determines to what extent Personal Data is processed through its use of the Service. To the extent that Tanium processes Personal Data on behalf of Customer while providing the Service, Tanium will process such Personal Data pursuant to the Data Processing Addendum found at http://tanium.com/dpa, which is hereby incorporated into and made a part of this Agreement.
6.3.2 Systems Information. During the term of the Agreement, Customer may provide to Tanium and the Service may collect performance, usage, and analytics information relating to Customer’s operation and use of the Service, metadata relating to Customer’s networks, software, applications, and systems, device identifiers, network telemetry, endpoint telemetry, system configuration, and data generated through any of the foregoing (collectively, “Systems Information”). 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.
Customer agrees that Tanium may use Systems Information: (a) to provide the Service; (b) to research, develop, and improve Tanium’s products and services; (c) as directed or instructed by Customer; and (d) on an aggregated and/or anonymized basis, for marketing purposes (the “Permitted Purpose”). To the extent Systems Information identifies Customer, such Systems Information will be held in confidence by Tanium in accordance with Section 10 (Confidentiality).
6.3.3 As between Customer and Tanium, this section states Tanium’s entire obligation with respect to Personal Data.
6.4 Supplemental Support and Training. Supplemental Support may be purchased by Customer and provided by Tanium in accordance with Appendix A. Product training may be purchased by Customer and provided by Tanium with respect to the Service (“Training”).
7. Limited Warranty; Disclaimer; Integrations with Third-Party Software and Services.
7.1 Limited Warranty. During the Warranty Period, Tanium warrants that (i) the Service will operate in substantial conformity with the Documentation; and (ii) it shall use commercially reasonable efforts to screen the Service 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 Service Period is less than ninety (90) days, the Warranty Period will be for the length of the Service Period. The foregoing warranties apply only to the Service provided to Customer during the Warranty Period and are solely for the benefit of Customer. 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 Service, 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 Service. This warranty is contingent upon the proper installation and use of the Service as described in the Documentation and this Agreement; Tanium shall not be responsible for Customer’s use of the Service if not operated in a manner recommended in the Documentation. Any modification to the Service by Customer or any third party may void Tanium’s warranties under this Section.
In addition, Tanium warrants that any Supplemental Support and Training 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 Supplemental Support and/or Training and receive a refund of any prepaid unused fees for such non-conforming Supplemental Support and/or Training.
7.2 Warranty Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION, THE SERVICE, SUPPORT MATERIALS, AND ALL SUPPORT ARE PROVIDED ON AN “AS AVAILABLE, ” “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANIUM AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICE, SUPPORT MATERIALS, AND SUPPORT, 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 SERVICE OR SUPPORT WILL MEET CUSTOMER’S REQUIREMENTS; THAT CUSTOMER’S USE OF THE SERVICE OR SUPPORT WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS; THAT THE OPERATION OF THE SERVICE OR SUPPORT WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS OR DEFECTS IN THE SERVICE OR SUPPORT WILL BE CORRECTED. TANIUM DOES NOT PROVIDE WARRANTIES WITH RESPECT TO ANY NON-GA PRODUCTS, SCRIPTS, CONTENT, OR OTHER TECHNOLOGIES, INCLUDING THE SUPPORT MATERIALS AND ANY INFORMATION OR ADVICE PROVIDED BY TANIUM PERSONNEL IN THE COURSE OF PROVIDING SUPPORT. TANIUM HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY PRODUCTS OR TECHNOLOGIES USED BY CUSTOMER WHETHER INDEPENDENTLY OR IN CONJUNCTION WITH THE SERVICE. 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 Service 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 Service features, and that any such removal or alteration does not entitle Customer to any refund, credit, or other compensation. If Customer elects to use non-Tanium software or services with the Service, Customer grants Tanium permission to allow the non-Tanium software or services or its provider to access Customer Data and information about Customer’s usage of the non-Tanium software or services as appropriate for the integration or interoperation of the non-Tanium software or services with the Service.
8. Indemnities. If a third party claims that Customer’s licensed use of the Service in compliance with the terms of this Agreement infringes a United States (i) patent, (ii) copyright, or (iii) trademark, or misappropriates a 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. 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 Service; (ii) modify the Service to make it non-infringing, without loss of material functionality; or (iii) replace the Service with a functionally equivalent, non-infringing service 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 Service, prorated for use over the remaining unused Service Period. 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 Service with any third-party or Customer hardware, software, products, data or other materials; (ii) modification or alteration of the Service by anyone other than Tanium; (iii) Customer’s failure to implement any workaround that would have avoided the claim; (iv) Customer’s use of the Service in breach of or 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 suppliers for any claim of intellectual property infringement arising out of or relating to the Service 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 and its Affiliates and their officers, directors, agents, employees, advertisers, partners, contractors, cloud providers, successors, and assigns harmless from any claim, demand, action, proceeding, judgment, or liability (including legal and other professional fees) from a third-party claim arising out of or related to: (i) an Excluded Claim; (ii) Customer Data used by Customer (a) without the required permission(s), consent(s), right(s), or license(s), or (b) in a manner prohibited or restricted by this Agreement; (iii) Customer’s violation of applicable law; or (iv) breach by Customer of the AUP. A party seeking indemnification under this Agreement shall promptly notify the indemnifying party in writing of such claim, permit the indemnifying party sole authority to control the defense or settlement of such claim, and provide the indemnifying party with reasonable assistance in connection therewith. The indemnified party may participate in the defense at its sole cost. Customer shall be responsible for determining whether the Service adheres to any applicable laws to which it is subject and otherwise meets its business needs.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TANIUM OR ITS SUPPLIERS BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH THE PARTIES EXPRESSLY AGREE INCLUDE, WITHOUT LIMITATION AND REGARDLESS OF ITS LEGAL CATEGORIZATION, ANY DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, AND/OR COST OF REPLACEMENT GOODS OR SERVICES, OR ANY OTHER DAMAGES SUSTAINED BY CUSTOMER ARISING OUT OF OR RELATED TO THE SERVICE, SUPPORT, OR THIS AGREEMENT, EVEN IF TANIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE MAXIMUM AGGREGATE LIABILITY OF TANIUM AND ITS SUPPLIERS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE SERVICE OR SUPPORT 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 CUSTOMERS CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO THEIR OWN NEEDS TO PROTECT THEMSELVES IF AN ERROR IN THE SERVICE OR SUPPORT 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 SERVICE 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 shall 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 or its affiliates in connection with this Agreement which (i) is marked confidential or proprietary; or (ii) from all the relevant circumstances should reasonably be assumed to be confidential. Confidential Information includes, but is not limited to, the Service and Support Materials. 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 disclosed or made available by one party or its affiliates to other party or its affiliates in connection with this Agreement 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. 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 executed a non-disclosure agreement related to Customer’s prospective license of the Service, the terms of this Section will supersede such non-disclosure agreement after the Effective Date.
11. Evaluation Software and Feedback.
11.1 Evaluation Software. This Section only applies to Services designated by Tanium as “Evaluation Service(s).” Subject to Section 2 (Restrictions), Tanium grants to Customer a non- transferable, non-exclusive limited license to use the Evaluation Service(s) 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 Service(s) (“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 Service(s) in a non-production environment. Customer bears the sole risk of using the Evaluation Service(s). Tanium provides the Evaluation Service(s) 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 suppliers 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 Service(s) are provided “AS-IS,” Tanium is not obligated to provide support for them. This Section supersedes any inconsistent term in the Agreement for purposes of the Evaluation Service(s).
11.2 Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Tanium with respect to its products and services, including the Service and Support. 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, worldwide, transferable, royalty- free license (including the right to sublicense) to use the Feedback in connection with Tanium’s business, including enhancement of the Service.
11.3 Beta Software. If the Service 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 (Beta Software). 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 support 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 Service and Support in the United States or Canada, or (b) in England and Wales if you purchased the Service and Support 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 Schedules and any exhibits attached hereto, the Data Processing Addendum, Documentation, appendices, and the AUP, 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 and this Agreement shall supersede any non-disclosure agreement required to be signed by Tanium employees or contractors prior to accessing Customer facilities or systems. 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 address identified on the Quote, or to Customer, at the contact information Customer provided when purchasing the Service and Support. 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), 6.3 (Personal Data and 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 Service, which contains 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 Service into other countries. Without limiting the foregoing, Customer agrees that it will not export, re-export, re-transfer, or provide access to the Service in contravention of the foregoing, or provide the Service 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 Service or Support in, any country not supported by Tanium, including, but not limited to, embargoed 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 Service was 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 Service 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 Service (“Audit”). An Audit will generally consist of Customer providing a system-generated deployment report evidencing Customer’s deployment of the Service. 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. Customer will immediately remit payment for any Service deployed in excess of the Service 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, pandemic, epidemic, 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 ATanium Supplemental Support
1. Supplemental Support.
1.1 General. Tanium Supplemental Support (“Supplemental Support”) may be obtained from Tanium at its then-current list price or mutually negotiated price during the Service Period, and the length of the engagement will be specified in the Agreement or Schedule (“ESR Support Term”). If Customer purchases Supplemental Support, Tanium will provide a Tanium enterprise support resource (“ESR”) who will be available to provide the relevant level of Supplemental Support during the ESR Support Term, which may consist of reasonable remote and onsite support.
The ESR may provide the following support as agreed with Customer:
- assist with the deployment, configuration, and optimization of the Tanium products;
- plan, coordinate and implement Tanium-related projects and communicate updates;
- provide consolidated reporting of current deployment status to Tanium’s senior technical and sales leadership and designated Customer representatives;
- collate technical documentation on behalf of the customer;
- help plan, communicate, and monitor the status, health and challenges associated with installation and deployment of Tanium products;
- 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 Tanium products; 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:
- execute an action, including, but not limited to deploying a patch, using Tanium products without the advance written review and approval by a designated Customer representative;
- use Tanium products 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 third-party hardware or software on which the Tanium product is running or dependent; or
- change any settings, undertake Tanium server or client tuning or conduct advanced troubleshooting without direct instruction and prior authorization from the Action Approver (or other designated Customer representative) and from the assigned primary Tanium technical account managers working with Customer (“TAM”).
The ESR Support Term will commence on the date set forth in the Schedule, or the effective date of the Schedule if a start date is not otherwise indicated. Customer will provide the ESR access to the Tanium environment and related Customer’s systems within thirty (30) days from agreed upon on-barding date (“On-Boarding Period“). In the event Customer fails to provide the ESR with the required systems access noted above, Tanium may withdraw the assigned ESR until access is granted. Supplemental Support will be provided 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 will provide to Customer with standard Support Services, unless otherwise agreed by Tanium, or when a replacement ESR is available, through the ESR Support Term.
1.2 Customer Responsibilities. 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 Tanium products are 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 Tanium products.
1.3 Action Approver. Customer will assign an action reviewer/approver to act as the final Customer approver for all Tanium actions submitted by the ESR (“Action Approver”). The Action Approver will have the authority to approve all actions issued in the Tanium console. Any other requested changes to the Customer’s environment will require a change review process to be agreed by the parties.
1.4 Remote Support. Supplemental Support 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 Supplemental Support, 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 Supplement Support or other 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 its obligations, Customer agrees to pay for any increased costs resulting from such failure.
[End of Agreement]