Online Master License and Services Agreement

January 8, 2014 (view archived version)

IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“You” or “Customer”) AND CHEF SOFTWARE INC. (“Chef”). BEFORE DOWNLOADING, ACCESSING, OR USING ANY PART OF CHEF ENTERPRISE CHEF (THE “SOFTWARE”) OR SERVICES (TOGETHER WITH THE SOFTWARE, THE “PRODUCT”), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS ONLINE MASTER LICENSE AND SERVICES AGREEMENT (the “Agreement”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THE PRODUCT. CHEF IS WILLING TO LICENSE AND ALLOW THE USE OF THE SOFTWARE AND PERFORM THE SERVICES ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY TERM OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PRODUCT.

BY CLICKING THE “I ACCEPT” BUTTON OR BY ACCESSING, DOWNLOADING OR OTHERWISE USING THE PRODUCT, YOU SIGNIFY YOUR AGREEMENT TO AND ACCEPTANCE OF THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY AND TO LEGALLY BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS RELATING TO YOUR USE OF THE PRODUCT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO, AND YOU MUST NOT ACCESS, DOWNLOAD OR OTHERWISE USE THE PRODUCT.

1. Definitions. Capitalized terms used herein shall have the following definitions:

   1.1.“Chef Proprietary Item” means any work, materials, or other tangible or intangible property proprietary to Chef and/or used by it in the course of its performance under this Agreement or any SOW or Order Form and that is (i) not a Deliverable; and (ii) developed by Chef independently of this Agreement. Inclusion of any Chef Proprietary Item in a Deliverable does not change its character as a Chef Proprietary Item.

   1.2.“Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that is identified as confidential at the time of disclosure or that a party reasonably should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Software and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

   1.3.“Customer Data” means all electronic data or information that both: (a) constitutes Customer’s Confidential Information; and (b) is submitted to Chef through use of the Software.

   1.4.“Documentation” means any on-line help files, instruction manuals, operating instructions and user manuals created and provided by Chef which describe the use of the Software and which either accompany the Software or are provided to Customer pursuant to this Agreement.

   1.5.“Node” means each individual component of Customer’s system – physical or virtual (i.e., server, workstation, IP router, Virtual Machine, or other device or component) that is installed, configured, updated and/or managed through the use of the Software.

   1.6.“Order Form” means a separate document that references this Agreement and is signed by both Parties.

   1.7.“Professional Services” means any professional services performed by Chef for Customer pursuant to any SOW.

   1.8.“Services” means, collectively, Professional Services and Support and Maintenance Services.

   1.9.“Software” means Enterprise Chef, and all updates, libraries, gems, databases, plug-ins, messaging services, authentication sub-functions, certificate management, and other such software components and environments provided by Chef to Customer.

   1.10.“Support and Maintenance Services” means the technical support and maintenance services described at https://www.chef.io/service-level-agreement#support..

2. License Grant. During the License Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Chef grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to install and use the Software only for the internal use of Customer (“License”), and limited to the number of Nodes for which Customer is current in the payment of the applicable License Fee and to use the Documentation only for its internal operation and use.

   2.1. Any unauthorized use of the Software will be deemed to be a material breach of this Agreement.

   2.2. Some components of the Software may be subject instead to the terms of an “open source” license (the “Open Source Components”). Chef may provide third party software, including Open Source Components, to Customer as part of Customer’s download of the Software. Third party software is subject to the terms of their accompanying licenses. Please see https://www.chef.io/3rd-party-licenses for more details.

   2.3. Customer may apply the License to Nodes either behind its firewall or as hosted by Chef. For a combination of on-site and hosted Nodes, please contact sales@chef.io .

3. Restrictions. The foregoing License is limited. Customer will not: (a) copy or use the Software in any manner except as expressly permitted in this Agreement; (b) use or deploy the Software on any Node in excess of the Nodes for which Customer has paid the applicable License Fee; (c) transfer, sell, rent, lease, commercialize, lend, distribute, or sublicense the Software to any third party; (d) reverse engineer, disassemble, or decompile the Software (except to the extent such restrictions are prohibited by law); (e) alter or remove any proprietary notices in the Software; (f) make available to any third party the functionality of the Software or any license keys used in connection with the Software; (g) use the Software for any purpose that is unlawful or prohibited by this Agreement or otherwise; or (h) disclose to any third party or publish the results of performance testing on or other benchmarking or performance evaluation of the Software (which shall only be performed in connection with Customer’s internal business operations, including gathering data on which to base Chef selection and purchasing decisions). If Customer does not comply with the License terms or the foregoing restrictions, Chef may terminate this Agreement.

4. Proprietary Rights.

   4.1.Software and Documentation. Other than the License granted in Section 2, Chef and its licensors retain all right, title and interest in and to the Software and Documentation and all components thereof, including all patent, copyright, trademark, and trade secret rights, whether such rights are registered or unregistered, and wherever in the world those rights may exist and in any derivatives, modifications and enhancements thereto (collectively, the “Chef Rights”). Customer shall not commit any act or omission, or permit or induce any third party to commit any act or omission, inconsistent with the Chef Rights. Chef or its licensors own all graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Software and its content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (collectively, the “Chef Marks”). This Agreement does not permit Customer to distribute any product or service using the Chef Marks, including in connection with any Open Source Components. Chef shall retain title to all copies of the Software provided to Customer or made by Customer. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Chef.

   4.2.Proprietary Items. Customer will have or obtain no rights in Chef Proprietary Items (or in any modifications or enhancements to them or any derivative work within the meaning of the US Copyright Act) other than, to the extent the Chef Proprietary Items are incorporated into a Deliverable, Chef will grant Customer a License in such Chef Proprietary Items to use them as part of (but not unbundled from) the Deliverable. All other intellectual property rights in and to the Chef Proprietary Items will remain in and/or hereby assigned to Chef.

5. Fees.

   5.1.License Fee. Customer may operate up to five (5) Nodes at no charge (a “Free License”). Customer may operate more than five (5) Nodes in exchange for a fee (the “License Fee”). The specific License Fee and the number of Nodes Licensed will be stated in an Order Form. Chef reserves the right to change the License Fee upon the expiration of the License Term. License Fees are based on Software purchased, not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of Nodes purchased cannot be decreased during the relevant License Term. Chef may, in its discretion, deactivate the hosted service for any Free License that has been inactive for 180 days.

   5.2.Professional Services Fee. Customer will pay Chef the fees, compensation and other amounts for Professional Services as specified in an applicable Statement of Work (“SOW”).

   5.3.Costs and Expenses. Customer will reimburse Chef for any reasonable expenses incurred by Chef in the performance of the Services, including without limitation, travel and lodging expenses.

   5.4.Payments. Any recurring fees, such as monthly License Fees, will be paid in advance by Customer, on or before the first of the month, during which such License is in effect. Unless otherwise provided in a SOW or Order Form, all payments of fees or charges under this Agreement shall be made in United States dollars and are due within thirty (30) days of Customer’s receipt of the applicable Chef invoice.

   5.5.Late payments. Late payments (other than amounts disputed in good faith by Customer) will bear interest at the lesser of one and one half percent (1 _%) per month or the maximum rate allowed by law. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. All fees are non-refundable. Further, Chef may terminate the License if Customer’s payments are overdue by more than thirty (30) days. Following a License termination, subject to applicable law, Chef makes no guarantees as to the availability of Customer Data.

   5.6.Taxes. Unless otherwise specified in the applicable Order Form or SOW, the fees, reimbursable expenses, compensation and other amounts payable to Chef under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority. Customer will pay or reimburse Chef for all such amounts upon demand or provide certificates or other evidence of exemption. In no event shall this apply to taxes imposed on the net income of Chef.

6. Term and Renewal; Termination.

   6.1.Term of Agreement. The term of this Agreement (the “Term”) will take effect on the earlier of (a) the date You sign this Agreement; (b) at the moment You click “I ACCEPT” or; (c) the date You access or use the Software (the “Effective Date”). Unless earlier terminated as provided for elsewhere in this Agreement, this Agreement will continue on a month to month basis until either party gives the other party thirty (30) days’ written notice of termination. Except as otherwise specifically provided for in the applicable Order Form or SOW, the parties’ respective rights and obligations in respect of any License, Services and/or Deliverables subject to any Order Form or SOW will survive any termination of the Term.

   6.2.License Term. Unless otherwise provided specifically in an Order Form, the License Term shall be month to month as provided in Section 6.1 above (the “License Term”).

   6.3.Early Termination. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach. In addition, without prejudice to any right or remedy Chef may have against Customer for breach or nonperformance of this Agreement, Chef may terminate this Agreement and any License granted herein upon written notice if Customer fails to pay any Fees within thirty (30) days after such Fees are due and payable.

   6.4.Effect of Termination. Customer’s obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement. If any SOW is terminated pursuant to and in accordance with this Section 6, (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the parties’ obligations under the applicable SOW; (b) Chef will have no obligation to perform any Services under the terminated SOW after the effective date of the termination; and (c) Customer will pay to Chef any fees, reimbursable expenses, compensation or other amounts payable for Services performed under the terminated SOW prior to the effective date of the termination. Upon termination or expiration of the applicable Order Form, Customer must uninstall any installed Software, cease using all Software and destroy or return all copies of the Software to Chef; and certify in writing that all known copies thereof, including backup copies, have been destroyed in all forms and types of media. Any and all liabilities accrued before the effective date of the termination will survive. Further, Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 3, 4, 5, 6.4, 9.2, 10, 11, 12, 13, 14, 16, 17, and 19. The provisions concerning Chef’s proprietary rights, feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this Agreement for any reason.

7. Delivery. Promptly after the Effective Date, Chef will make the Software available to Customer electronically. Software will be deemed to be delivered to Customer’s billing address unless Customer provides written notice otherwise.

8. Support and Maintenance Services. Unless Customer has only a Free License, Chef will provide Customer the Support and Maintenance services listed at https://www.chef.io/service-level-agreement/#support, at either the “Standard” or the “Premium” level, as indicated in the Order Form. If Customer has a Free License, Chef will not provide Support and Maintenance Services pursuant to this Agreement.

   8.1.Remote Support. As part of the Support and Maintenance Services, unless Customer opts-out, Chef may have remote access to the Software that will enable it to receive data and information directly from the Software regarding Software bugs, errors, and other similar technical support issues. Chef will only use such data and information for the purposes of providing the Support and Maintenance Services and in aggregate form for the purposes of improving the Software. If Customer elects to disable Chef’s remote access to the Software, Chef will not be responsible for any related delays in providing the Support and Maintenance Services.

   8.2.Changes/Derivatives. Customer may make derivatives of the Software for its internal use. However, such derivatives may impact Chef’s ability to perform maintenance and support. Chef reserves the right, in its sole discretion, to limit or refuse to support and maintain derivatives.

   8.3.Limitations. Chef will not be responsible for correcting any errors not reproducible by Chef on the unmodified Software or errors caused by: (a) Your failure to implement all Updates and Upgrades provided by Chef under this Agreement; (b) changes by You to the operating system or environment which adversely affect the Software; (c) use of the Software in a manner for which it was not designed; (d) accident, negligence, or misuse of the Software; or (e) operation of a version of the Software older than the most current Version of the Software and the immediately preceding Version of the Software, but not any earlier Versions. A “Version” is a Major Version in the following format: Major Version.Minor Version.Patch Level.

9. Professional Services. Chef will perform the Professional Services detailed in any SOW. SOWs shall set forth a description of the work to be performed, fees, time schedules and other special terms and conditions applicable to the particular project. Each SOW will become effective only upon acceptance by both parties hereto as evidenced by signature of an authorized representative of each party on the applicable SOW. Chef will perform the Professional Services using employees, subcontractors or agents, as Chef in its sole discretion deems appropriate. Chef will remain responsible to Customer for the actions or its subcontractors or agents when so used.

   9.1.Customer Responsibilities. Customer is responsible for the identification of any federal, state and local laws, regulations and statutes that apply to any project described under a SOW, for communicating such to Chef, and for verifying that the proposed project meets such requirements. Customer understands its business needs and has determined independently that the Deliverables and Professional Services will meet its needs.

   9.2.Intellectual Property Ownership. Should the Professional Services set forth in a SOW result in any reports, work product or other tangible items identified in a SOW as a deliverable (“Deliverables”), Customer is given, unless otherwise provided in a SOW, a worldwide, non-exclusive, non-transferable, non sub-licensable license to use the Deliverables for Customer’s internal use. Other than the limited license to the Deliverables contained herein or as otherwise set forth in a SOW, Chef shall own and retain all right, title and interest, express or implied, in and to any Deliverables created during the course of providing the Professional Services and to all other works of authorship of any kind or nature prepared, created or conceived by Chef in the performance of the Professional Services, exclusive of any Confidential Information of Customer incorporated therein. Chef shall not own or have any right, title or interest in or to the Confidential Information of Customer, whether by assignment, license or otherwise.

   9.3.Residuals/Items of General Knowledge. Chef will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its professional services practice that are used in the course of providing the Professional Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Chef. In no event will Chef be precluded from developing for itself, or for others, materials that are competitive with the Deliverables, irrespective of their similarity to the Deliverables, provided this is done without use of Customer’s Confidential Information.

10. Warranty.

    10.1.Services Warranty. Chef warrants to Customer for a period of sixty 60 days after Customer acceptance of Services or Deliverables or initial receipt of or access to the Software, as applicable (the “Specifications Conformity Warranty Period”) that: (a) the Services will be performed in a good and workmanlike manner; and (b) the Deliverables will perform in all material respects with the applicable specifications. Chef’s sole obligation under the limited warranty set forth in this Section 10.1 is to use commercially reasonable efforts to correct any Services or Deliverables that do not comply with the warranties set forth in this Section (e.g., by reperformance of any noncomplying Services or modifying any noncomplying Deliverables); provided that Customer gives Chef written notice of the noncompliance within the Specifications Conformity Warranty Period. If, after the expenditure of commercially reasonable efforts, Chef is unable to correct the noncompliance, Chef may choose to refund an equitable portion (e.g., based upon the value of Customer’s actual use of, or any benefits received by Customer) of the fee paid by Customer for such Deliverables or Services, whereupon the same will be deleted from the Deliverables or Services and no longer considered a part thereof.

    10.2.Software Warranty. Chef warrants that the Software will perform in all material respects as specified in its accompanying Documentation under normal use for the duration of the Specifications Conformity Warranty Period. This warranty extends only to Customer. To the maximum extent permitted by applicable law, Customer’s exclusive remedy for a breach of this limited warranty is to return any allegedly defective Software and Chef, at its option, will replace it or refund any fee paid for the Software, provided that Customer gives Chef written notice of the noncompliance within the Specifications Conformity Warranty Period. Chef’s sole obligation under the limited warranty set forth in this Section 10.2 is to use its reasonable efforts to correct or replace any non-conforming Software once Chef has been made aware of such non-conformance or, in Chef’s sole discretion, to terminate this Agreement (in which event, Customer will immediately stop using the Software) and refund the License Fees paid by Customer to Chef up through the effective date of such termination.

    10.3.Exclusions. The warranties under Sections 10.1 and 10.2 do not apply to any noncompliance resulting from any: (a) use not in accordance with this Agreement or any applicable SOW, including Customer operation or use of the Software or Deliverables other than in accordance with applicable documentation or design or on hardware not recommended, supplied or approved by Chef; (b) modification, damage, misuse or other action of Customer or any third party; or (c) combination with any goods, services or other items provided by Customer or any third party. Further, Chef does not warrant that the Software or Deliverables or any other items furnished by Chef under this Agreement or any SOW are free from non-material bugs, errors, defects or deficiencies.

    10.4.Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTIONS 10.1 AND 10.2 ABOVE, THE SOFTWARE, DELIVERABLES AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, WARRANTIES CONCERNING THE USE, INTER-OPERABILITY, OR PERFORMANCE OF THE SOFTWARE. CHEF DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. CHEF DOES NOT WARRANT THAT THE SOFTWARE OR DELIVERABLES OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.

11. Indemnification.

    11.1.Indemnification by Chef. Chef will indemnify Customer and will pay any costs or damages that may be finally awarded in respect of any third party claims, proceedings, costs or damages, including actual attorneys’ fees and court costs and expenses in any such third party action, proceeding or case, and agreed settlements to the extent that the Software or Deliverables infringe any United States patent, or any copyright, trademark or other proprietary right of such third party; provided that: (a) Customer promptly notifies Chef of the claim; (b) Customer gives Chef all necessary information regarding the claim; (c) Customer reasonably cooperates with Chef; and (d) allows Chef to control the defense and all related settlement negotiations; provided that, if any settlement requires a non-monetary obligation of an indemnified party (other than ceasing use of the Deliverable or Software), then such settlement shall require the Customer’s prior written consent, which consent will not be unreasonably withheld.

    11.2.Injunction. If an injunction is sought or obtained against Customer’s use of Deliverables or Software as a result of a third party infringement claim or in Chef’s opinion is likely to be enjoined, Chef may, at its sole option and expense, (a) procure for Customer the right to continue using the affected Deliverable or Software, (b) replace or modify the affected Deliverable or Software with substantially equivalent software functionality so that it does not infringe, or, if either (a) or (b) is not commercially feasible in Chef’s opinion, (c) terminate the licenses and promptly refund Customer a pro-rata portion of any prepaid License Fees based on the remainder of the License Term.

    11.3.Exclusions. Chef will have no liability for any infringement claim (a) based on modifications to the Deliverable or Software made by a party other than Chef or third party acting on behalf of Chef, if a claim would not have occurred but for such modifications, (b) based on the use of other than the then-current, unaltered version of the Deliverable or Software, unless the infringing portion is also in the then-current, unaltered release; (c) based on the use, operation or combination of the Deliverable or Software with non-Chef programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; (d) attributable to any Third Party Components; or (e) based on Customer’s use of the Deliverable or Software other than in accordance with this Agreement or the applicable Documentation.

    11.4.Sole Remedy. THE TERMS OF THIS SECTION CONSTITUTE THE ENTIRE LIABILITY OF CHEF, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

    11.5.Indemnification by Customer. You agree to defend, indemnify, and hold harmless Chef and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by You of this Agreement.

12. Limitation of Liability.

    12.1.Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHEF, ITS AFFILIATES, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS (COLLECTIVELY, THE “CHEF PARTIES”) BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, DELIVERABLES OR THE SERVICES PROVIDED BY CHEF HEREUNDER INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

    12.2.Aggregate Liability. IN NO EVENT WILL THE CHEF PARTIES’ AGGREGATE LIABILITY FOR DIRECT DAMAGES, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO CHEF UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF A CLAIM.

    12.3.General. THESE LIMITATIONS APPLY EVEN IF THIS SECTION 12 IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, THE LIABILITY OF THE CHEF PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

13. Confidentiality. Customer and Chef will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The terms of this Confidentiality Section shall survive termination of this Agreement. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.

14. Data Security. Chef will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Chef will not (i) modify Customer Data; (ii) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer; or (iii) access Customer Data except to provide the services and prevent or address service or technical problems, or at Customer’s request in connection with Customer support matters. The Parties further acknowledge that Chef will not actively Process Customer Personal Data as part of the Services. The Customer will use commercially reasonable efforts to restrict Chef’s access to Customer Personal Data to those types of access that are unavoidable as incidental to the Services. If Chef knowingly receives Customer Personal Data from the Customer that is not required as a necessary incident to the performance of the Services, Chef shall give notice to the Customer, and the Customer shall give prompt direction to Chef regarding the destruction or return of such data. Chef shall maintain procedures to promptly notify Customer in the event of loss, misuse, or unauthorized acquisition of Customer Personal Data where such events come to Chef’s attention. Upon the termination of this Agreement, Chef will return or destroy all Customer Personal Data accessed and/or processed. “Customer Personal Data” means data owned or controlled by Customer that Chef may have access to during the provision of the Services and which names or identifies a natural person such as: (a) data that is explicitly defined as a regulated category of data under applicable Data Privacy Laws; (b) non-public personal data, such as national identification number, passport number, social security number, driver’s license number; (c) health or medical information, such as insurance information, medical prognosis, diagnosis information or genetic information; (d) financial information, such as a policy number, credit card number and/or bank account number; and/or (e) sensitive personal data, such as mother’s maiden name, race, religion, marital status, disability, or sexuality.

15. Node Compliance Reports. If and when Customer adds additional Nodes to its License, Customer will pay to Chef the License Fees for such additional Nodes at the then-current price. Upon Chef’s request (such request not to be made more than twice during any 12 month period without good cause), Customer agrees to promptly deliver to Chef (a) any usage files and reports generated by the Software to permit Chef to verify the number of Nodes actually used by Customer during the applicable License Term; and/or (b) a certification signed by one of Customer’s officers regarding the number of Nodes actually used by Customer during the applicable License Term. Notwithstanding the foregoing, Customer agrees to reasonably cooperate with Chef to verify the number of Nodes actually used by Customer during the applicable License Term. If Chef confirms that Customer has exceeded the number of Nodes for the applicable License Term, in addition to any other remedies available under this Agreement or applicable law, Customer agrees to pay to Chef the then-current License Fees for the additional Nodes used by Customer.

16. Export Compliance. As required by the laws of the United States and other countries, Customer represents and warrants that Customer: (a) understands that the Software and its components may be subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations; (c) will not export, re-export, or transfer the Software to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use or transfer the Software in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license; (e) understands and agrees that if Customer is in the United States and exports or transfers the Software to eligible end users, Customer will, to the extent required by EAR Section 740.17(e), submit semi-annual reports to the Commerce Department’s Bureau of Industry and Security, which include the name and address (including country) of each transferee; and (f) understands that countries including the United States may restrict the import, use, or export of encryption products (which may include the Software and the components) and agrees that Customer shall be solely responsible for compliance with any such import, use, or export restrictions.

17. Customer Obligations.

    17.1. Customer will comply with all applicable local, state, national, and international laws and regulations with respect to Customer’s use of the Software and Services. Customer further agrees that its purchase under this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Chef regarding future functionality or features. Customer will (a) be responsible for compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data; and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Software; and notify Chef promptly of any such unauthorized access or use.

    17.2. Customer will not transmit or disclose any protected health information (as that term is used in HIPAA) or any nonpublic personal information (as that term is used in the Gramm-Leach-Bliley Act) to Chef.

    17.3. By downloading, accessing, or using the Software, Customer represents that it is at least the legal age of majority and will, at all times, will provide true, accurate, current, and complete information when submitting information or materials to Chef.

18. U.S. Government. The Software is “Commercial Computer Software” as defined under FAR 252.227-7014. If Customer is subject to the Defense Federal Acquisition Resolutions (DFAR), the Software and Documentation are licensed pursuant to Chef’s standard commercial license according to DFARS 227.7202. For all other government entities, use, duplication, or disclosure of the Software and Documentation by the U.S. Government is subject to restrictions set forth in subparagraph (b)(2) of 48 CFR 52.227-19, as applicable.

19. General. Neither party shall be liable for any delay or failure in performance (except for any payment obligations) due to causes beyond its reasonable control. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s voting securities or the assets governed by this Agreement; provided, that: (a) the assignor or assignee provides reasonably prompt written notice of such assignment to the non-assigning party; and (b) the assignee is capable of fully performing the obligations of the assignor under the Agreement. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. All waivers must be in writing and signed by both parties. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by confirmed facsimile, overnight courier service or mailed by first class, registered or certified mail, postage prepaid. Such notice shall be deemed to have been given upon receipt. This Agreement shall be governed by the laws of the State of Washington, U.S.A., excluding its conflicts of law rules. The parties expressly agree that the UN Convention for the International Sale of Goods (CISG) or the Uniform Computer Information Transactions Act (UCITA) will not apply. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement, and all agreements referenced herein, are in addition to, and do not limit any applicable provisions of Chef Terms and Conditions of Use, and this Agreement supersedes all prior or contemporaneous oral or written agreements regarding its subject. In the event of a conflict between this Agreement and other applicable documents between the Parties, such documents will apply in the following descending order of precedence: (w) SOW; (x) this Agreement; (y); Order Form; (z) other applicable agreements. In the event of a conflict between any terms of this Agreement or terms of an Order Form and the terms and conditions attached to or otherwise forming part of any Purchase Order issued by Customer (collectively, “Purchase Order Terms”), the terms of this Agreement and/or Order Form shall control or supersede the Purchase Order Terms and void any additional obligations placed on Chef not contemplated by this Agreement. Each of the parties has caused this Agreement to be executed by its duly authorized representatives as of the Effective Date. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.