Online Master License and Services Agreement

April 5, 2018 (view archived version)

THIS ONLINE MASTER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN CHEF SOFTWARE INC., LOCATED AT 619 WESTERN AVENUE, SUITE 400, SEATTLE WA 98104 (“CHEF” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY (“CUSTOMER” OR “YOU”) WHO HAS EXECUTED AN ORDER FORM (OR OTHER ORDERING OR PURCHASING DOCUMENT) REFERENCING THIS AGREEMENT OR IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY CHEF (“SOFTWARE”) OR PROFESSIONAL SERVICES (“SERVICES” AND TOGETHER WITH THE SOFTWARE, THE “PRODUCT”) AND GOVERNS ALL USE BY CUSTOMER OF THE PRODUCT REFERENCED IN SUCH ORDER FORM.

BY EXECUTING AN ORDER FORM, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” WILL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM AND 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.

This Agreement, including all referenced documents located at the URLs listed below is effective as of the date You download the Software

  1. Definitions. Capitalized terms used herein have the following definitions:
    1. “Affiliate” means any entity that is controlled by or under common control with Customer, where “control” means the ability whether directly or indirectly to direct the affairs of another by means of ownership, contract or otherwise.
    2. “Chef Proprietary Item” means any Software Usage and Technical Support Data, work, materials, or other tangible or intangible property used by Chef in the course of its performance under this Agreement or any Order Form that is (i) not a Deliverable; or (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.
    3. “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.
    4. “Documentation” means any on-line help files, instruction manuals, operating instructions and user manuals created and provided by Chef that describe the use of the Software and either accompany the Software or are available at https://docs.chef.io and https://www.habitat.sh/docs/overview
    5. “Habitat Supervisor” means a process manager in Chef Habitat™ that (i) starts and monitors the child app service defined in a package; and (ii) receives and acts upon configuration changes from other Habitat Supervisors to which it is connected.
    6. “Intellectual Property Rights” means patent rights (including without limitation patent applications and disclosures), copyrights (including without limitation rights in audiovisual works and moral rights), trade secrets, trademarks, know-how, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
    7. “License Fee” means fees paid to Chef from Customer in exchange for Customer’s right to use and/or sublicense the Software as provided in this Agreement.
    8. “License Term” means the term during which Customer is permitted to use the Software, which will be: (i) month to month until either party gives the other party thirty (30) days’ written notice of termination; or (ii) the License Term described in the applicable Order Form.
    9. “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 assessed, installed, configured, updated, scanned and/or managed through the use of the Software, including without limitation Habitat Supervisors. 
    10. “Order Form” means a separate document that references this Agreement and is signed by both Parties.
    11. “Professional Services” means any professional services performed by Chef for Customer pursuant to any Order Form.
    12. “Services” means, collectively, Professional Services and Support Services.
    13. “Software” means the applicable software made available by Chef and referenced on an Order Form, including all updates, libraries, gems, databases, plug-ins, messaging services, authentication sub-functions, certificate management, and environments provided by Chef to Customer during the applicable License Term.
    14. Support Services” means the technical support services described at https://www.chef.io/service-level-agreement/ or in any Order Form.
  2. License Grant and Support. During the applicable License Term, and subject to Customer’s compliance with the terms and conditions of Sections 4, 6, 13, 15, and 17, Chef grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to (a) install and use the Software only for the internal use of Customer (“License”), (whether on premises or in the cloud, and including any information technology infrastructure for the benefit of Customer’s customers) and limited to the number of Nodes for which Customer is current in the payment of the applicable License Fee and, (b) to use the Documentation only for its internal operation and use.
    1. Support. During the applicable License Term, Chef will provide Support to Customer as specified in the applicable Attachment or Order Form.
    2. Third Party Support. Customer may also elect, at its discretion, to obtain separate support by a third party for all or some of its licensed Nodes (“Administered Nodes”).
      1. Customer agrees that it will provide Chef the following information in connection with all Administered Nodes for all periods that it is using a third party to support Administered Nodes during the applicable License Term:
        1. Customer identification number/name with third party
        2. Number of Administered Nodes for the prior month as of the 10th day of each following Month
      2. The License Term for the Software is independent of any support term for Administered Nodes that Customer may elect with a third party.
      3. Failure by Customer to provide the information in this Section 2(b) will be a material breach of this Agreement.
  3. Third Party Software. The Software includes components under license from third parties, including open source licenses (the “Third Party Components”). Third Party Components are subject to the terms of their accompanying licenses. Please see https://www.chef.io/3rd-party-licenses/ for more details. For avoidance of doubt, Chef’s warranty of the Software includes all Third Party Components to the extent embedded in, and used by, the Software.
  4. Restrictions. The License is limited. Except as otherwise expressly permitted in this Agreement, 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; or (g) use the Software for any purpose that is unlawful or prohibited by this Agreement or otherwise. If Customer does not comply with the License terms or the foregoing restrictions, Chef may terminate the applicable License.
  5. Proprietary Rights.
    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 will 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 Third Party Components. Chef will 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.
    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) except that, 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 are hereby assigned to Chef.
  6. Fees and Payment Terms:
    1. License Fee. The specific License Fee will be as provided at https://www.chef.io/pricing/ unless an Order Form provides otherwise. 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. Except as otherwise provided in this Agreement, all License Fees and Professional Services fees designated as “fixed fee” are non-cancelable, fees paid are non-refundable, and Customer shall not be entitled to a refund for any such fees. The number of Nodes purchased cannot be decreased during the relevant License Term. License Fees will be paid in advance monthly or in accordance with any different billing frequency stated in the applicable Order Form.
    2. Professional Services Fee. For Professional Services fees designated as “fixed fee”, Chef will invoice Customer upon execution of the applicable Order Form. For Professional Services not designated as fixed fee, Chef will invoice monthly in arrears based on actual hours worked during the preceding month. Unless the applicable Order Form provides otherwise, Professional Services Fees are non-cancelable and fees paid are non-refundable.
    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.
    4. Payments. Unless otherwise provided in an Order Form, all payments of fees or charges payable to Chef under this Agreement will be made in United States dollars and are due in full within thirty (30) days from the invoice date. Customer will provide complete and accurate billing and contact information to Chef and will notify Chef of any changes to such information.
    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 ½%) 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. Further, Chef may terminate the License if Customer’s payments are overdue by more than thirty (30) days.
    6. The fees, reimbursable expenses, compensation and other amounts payable to Chef under this Agreement are exclusive of any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority, including sales, use, value-added (“VAT”), goods and services (“GST”), or other similar transactional taxes. Customer will be responsible for all such amounts upon demand or provide certificates or other evidence of exemption. In no event will this apply to taxes imposed on the net income of Chef.
  7. Delivery and Acceptance.
    1. Acceptance. 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. The Software will be deemed accepted immediately upon delivery. Acceptance (if any) of Deliverables will be specified in an Order Form.
  8. Term and Renewal; Termination.
    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”). This Agreement will continue until terminated as provided herein. Except as otherwise provided in Section 8(c) below, termination of this Agreement will not affect any outstanding Order Form, and this Agreement will remain in effect until all Services and Deliverables to be provided thereunder have been completed and/or the applicable License Term has expired per the terms of such Order Form.
    2. Early Termination. Either party may terminate this Agreement or any Order Form if the other party materially breaches its obligations under such Agreement or Order Form and, where such breach is curable such breach remains uncured for thirty (30) days following written notice of the breach. Customer’s failure to pay any fees owing to Chef within thirty (30) days after such fees are due and payable is a material breach for which Chef may terminate the applicable Order Form pursuant to this Section 8(b) immediately upon written notice.
    3. Effect of Termination.
      1. Upon termination of this Agreement, Customer will discontinue all representations that it is a Customer of Chef. Termination of the Agreement will not terminate an Order Form unless the basis for termination also prevents full performance under such Order Form and the non-breaching party includes notice of termination of such Order Form in its notice of termination of the Agreement.  
      2. Upon termination of an Order Form, the following will apply in respect of that specific Order Form only:
        1. the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the parties’ obligations under that Order Form;
        2. Chef will have no obligation to perform any Services under the terminated Order Form after the effective date of the termination;
        3. Customer will pay to Chef any fees, reimbursable expenses, compensation or other amounts payable for Services performed under the terminated Order Form prior to the effective date of the termination;
        4. all licenses granted by Chef thereunder will automatically cease as of the effective date of termination of such Order Form, and if Customer has no other applicable Software License, 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 or disabled in all forms and types of media as of the effective date of termination; and
        5. upon Customer’s termination of an Order Form as provided in Section 8(b), Chef will, subject to Section 10 and Section 11 of this Agreement, pay to Customer the following:
          1. a pro rata portion of applicable License Fees following the effective date of termination through the expiration of the applicable License Term; and
          2. Professional Services fees designated as “fixed fee” that have not been performed as of the effective date of termination.
      3. Upon termination of this Agreement and completion, termination or expiration of all outstanding Order Forms, each party will promptly return to the other all of the other party’s Confidential Information within its possession or control and will certify in writing that it has complied with its obligations to return all such Confidential Information.
      4. The following shall survive termination of this Agreement for any reason: any and all liabilities accrued before the effective date of termination; and the provisions of this Agreement concerning proprietary rights, indemnity, disclaimers of warranty, limitation of liability, payment of fees and governing law.
  9. Professional Services. Chef will perform the Professional Services detailed in any Order Form. Order Forms will 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 Order Form will become effective only upon acceptance by both parties hereto as evidenced by signature of an authorized representative of each party on the applicable Order Form. Chef will perform the Professional Services using its employees, subcontractors or agents, as Chef in its sole discretion deems appropriate. Chef will remain responsible to Customer for the actions of its employees, subcontractors or agents when so used.
    1. Customer Responsibilities. Customer understands its business needs and has determined independently that the Deliverables and Professional Services will meet its needs.
    2. Intellectual Property Ownership. Should the Professional Services set forth in an Order Form result in any reports, work product or other tangible items identified in an Order Form as a deliverable (“Deliverables”), and, unless otherwise provided in an Order Form, Chef grants to Customer 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 an Order Form, Chef will 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 will not own or have any right, title or interest in or to the Confidential Information of Customer, whether by assignment, license or otherwise.
    3. Residuals/Items of General Knowledge. Chef may use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its professional services practice 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.
    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 “Warranty Period”) that: (a) the Services will be performed in a good and workmanlike manner; and (b) the Deliverables will conform in all material respects to applicable specifications identified in an Order Form. Chef’s sole obligation under the limited warranty set forth in this Section 10(a) is to use commercially reasonable efforts to correct any Services or Deliverables that do not comply with the warranties set forth in this Section 10(a) (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 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.
    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 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 Softwareprovided that Customer gives Chef written notice of the noncompliance within the Warranty Period. Chef’s sole obligation under the limited warranty set forth in this Section 10(b) 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.
    3. Exclusions. The warranties under Sections 10(a) and 10(b) do not apply to any noncompliance resulting from any: (a) use not in accordance with this Agreement or any applicable Order Form, 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 Order Form are free from non-material bugs, errors, defects or deficiencies.
    4. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTIONS 10(a) AND 10(b) 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, 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.
    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 Customer: (a) promptly notifies Chef of the claim; (b) gives Chef all necessary information regarding the claim; (c) 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 Software or Deliverables), then such settlement will require the Customer’s prior written consent, which consent will not be unreasonably withheld.
    2. Injunction. If an injunction is sought or obtained against Customer’s use of Software or Deliverables 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 Software or Deliverable, (b) replace or modify the affected 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 License and promptly refund Customer a pro-rata portion of any prepaid License Fees based on the remainder of the License Term.
    3. Exclusions. Chef will have no liability for any infringement claim (a) based on modifications to the Software or Deliverables 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 or release of the Software or Deliverables, unless the infringing portion is also in the then-current, unaltered version or release; (c) based on the use, operation or combination of the Software or Deliverables 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 Software or Deliverables other than in accordance with this Agreement or the applicable Documentation.
    4. Sole Remedy. THE TERMS OF THIS SECTION 11 CONSTITUTE THE ENTIRE LIABILITY OF CHEF, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INDEMNIFICATION CLAIMS OF ANY KIND.
    5. Indemnification by Customer. Customer will 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 third party claim arising from or in any way related to Customer’s violation of (i) applicable laws, rules or regulations and/or (ii) the confidentiality provisions of this Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Chef will provide Customer with written notice of such claim, suit or action.
  12. Limitation of Liability.
    1. Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED SPECIFICALLY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE TO THE OTHER PARTY 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.
    2. Aggregate Liability. IN NO EVENT WILL EITHER PARTY’S 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 TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF A CLAIM.
    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 PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
    4. Exclusion – Violations of Law. The limits in Section 12(a) and Section 12(b) above do not apply to damages incurred by a party due to the other party’s violation of applicable laws.
  13. Confidentiality and Privacy. 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 will 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 will use less than reasonable care. The terms of this Confidentiality section will 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.

    If the Customer is located in the European Union then the following terms will apply:

    1. Definitions:  In this Section 13, the following terms will have the following meanings:
      1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
      2. “Controller“, “Processor“, “Data Subject“, “ Personal Data“, “Processing” (and “Process“) and “Special Categories of Personal Data” will have the meanings given in Applicable Data Protection Law;
      3. “Applicable Data Protection Law” will mean: (i) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); and (ii) on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679).
      4. “Standard Contractual Clauses” means the contractual clauses set out in Exhibit 1 to this Agreement.
    2. Processing of Data:
      1. Applicability. This Agreement will apply only to the extent Customer is established within the EEA or Switzerland and/or to the extent Chef processes Personal Data of Data Subjects located in the EEA or Switzerland on behalf of Customer.
      2. Relationship of the parties:  The Customer (the “Controller”) appoints Chef as a processor to Process the Personal Data that is the subject of the Agreement (the “Data”) for the purposes described in this Agreement and the Principal Agreement (or as otherwise agreed in writing by the parties) (the “Permitted Purpose”).  Each party will comply with the obligations that apply to it under Applicable Data Protection Law.
      3. Prohibited data:  The Customer will not disclose any Special Categories of Data to Chef for processing.
      4. Purpose Limitation:  Chef will process the Data as a Processor as necessary to perform its obligations under this Agreement and any Order Form, and in accordance with the documented instructions of Customer (the “Permitted Purpose”), except where otherwise required by any EU (or any EU Member State) law applicable to Chef.  The duration of the Processing, the nature and purpose of the Processing, the types of Data and categories of Data Subjects Processed under this Agreement are further specified in Appendix 1 to the Standard Contractual Clauses.  
      5. International transfers:  Chef will not transfer the Data (nor permit the Data to be transferred) outside of the European Economic Area (“EEA”) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law.  Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission. The following transfer mechanisms listed below will apply, in the following order of precedence, to any transfers of Data under this Agreement from the European Union, the European Economic Area and/or their member states, Switzerland and the United Kingdom to countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws and Regulations of the foregoing territories, to the extent such transfers are subject to such Data Protection Laws and Regulations; (1) Chef’s EU-U.S. and Swiss-U.S. Privacy Shield Framework self-certifications (the “EU-US and Swiss-US Privacy Shield Services”); (2) The Standard Contractual Clauses set forth in Exhibit 1 to this Agreement.
      6. Confidentiality of Processing:  Chef will ensure that any person it authorizes to process the Data (an “Authorized Person”) will protect the Data in accordance with Chef’s confidentiality obligations under this Agreement.
      7. Security:  Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Chef will implement technical and organizational measures to protect the Data (1) from accidental or unlawful destruction, and (2) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident”).
      8. Sub-Processing:  The Customer consents to Chef engaging third party sub processors to process the Data for the Permitted Purpose provided that: (1) Chef maintains an up-to-date list of its sub processors and will provide such to Customer upon Customer’s written request; (2) Chef imposes data protection terms on any sub processor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (3) Chef remains liable for any breach of this Clause that is caused by an act, error or omission of its sub processor.  The Customer may object to Chef’s appointment or replacement of a sub processor, provided such objection is based on reasonable grounds relating to data protection. In such event, Chef will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s configuration or use of the Services to avoid Processing of Personal Data by the objected-to new Sub-processor without unreasonably burdening the Customer. If Chef is unable to make available such change within a reasonable period of time, which will not exceed thirty (30) days, Customer may terminate the applicable Order Form(s) with respect only to those Services which cannot be provided by Chef without the use of the objected-to new Sub-processor by providing written notice to Chef. Chef will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services, without imposing a penalty for such termination on Customer.
      9. Cooperation and Data Subjects’ Rights:  Chef will provide reasonable and timely assistance to the Customer (at the Customer’s expense) to enable the Customer to respond to: (1) any request from a Data Subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (2) any other correspondence, inquiry or complaint received from a Data Subject, regulator or other third party in connection with the processing of the Data.   In the event that any such request, correspondence, enquiry or complaint is made directly to Chef, Chef will promptly inform the Customer providing full details of the same.
      10. Data Protection Impact Assessment:  If Chef believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of Data Subjects, it will inform the Customer and provide reasonable cooperation to the Customer (at the Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.
      11. Security Incidents:  If Chef becomes aware of a confirmed Security Incident (as defined in Section 13(b)(vii) above), it will inform the Customer without undue delay and will provide reasonable information and cooperation to the Customer so that the Customer can fulfill any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law.  Chef will further take such any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and will keep the Customer of all material developments in connection with the Security Incident.
      12. Deletion or Return of Data:  Upon termination or expiration of the Principal Agreement, Chef will (at the Customer’s election) destroy or return to the Customer all Data in its possession or control.  This requirement will not apply to the extent that Chef is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, which Data Chef will securely isolate and protect from any further processing except to the extent required by such law.
      13. Audit:  The Customer acknowledges that Chef is regularly audited by independent third party auditors.  Upon request, Chef will supply a summary copy of its audit report(s) to the Customer, which reports will be subject to the confidentiality provisions of this Agreement. Chef will also respond to any written audit questions submitted to it by the Customer, provided that the Customer will not exercise this right more than once per year.
  14. Software Usage Tracking.
    1. If and when Customer adds additional Nodes to its License, Customer will pay to Chef for such additional Nodes added to any License. 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 the then-current License Fees for the additional Nodes used by Customer.
    2. Unless Customer chooses to disable telemetry features in the Software, Customer consents to Chef receiving data and information directly from the Software for the sole purpose of obtaining information regarding Customer’s use of the Software (i.e., when Customer installs an update or upgrade), as well as any Software bugs, errors, and other similar technical support issues. Chef will only use such data and information (“Software Usage and Technical Support Data”) for its own business purposes, including but not limited to the purposes of (i) providing the Support Services; and (ii) to gather information about how Customer uses the Software, which may be combined with information about how others use the Software, in order to help Chef better understand trends and Customers’ needs in order to better consider new features, and (iii) improving the Software and Customer’s use experience. Chef will use Software Usage and Technical Support Data solely in aggregate, anonymized form and solely for Chef’s own business purposes. For instructions on how to disable Chef’s access to the Software Usage and Technical Support Data, please refer to the Software Documentation or contact Chef Support.
  15. 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; and (e) 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 will be solely responsible for compliance with any such import, use, or export restrictions.
  16. FCPA Compliance and No Unlawful Payments. Neither the Customer nor any of its subsidiaries nor, to the Customer’s knowledge, any other person associated with or acting on behalf of the Customer or any of its subsidiaries, including, without limitation, any director, officer, agent, employee or affiliate of the Customer or any of its subsidiaries (“Representatives”) has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder; and the Customer has instituted and maintains policies and procedures designed to ensure compliance therewith. Further, Customer will, and will cause its Representatives to, comply with the FCPA, including maintaining and complying with all policies and procedures to ensure compliance with this Act.
  17. Additional Obligations. Each Party will comply with all applicable local, state, national, and international laws and regulations with respect to its rights and obligations under this Agreement. 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 of the Software. By downloading, accessing, or using the Software, Customer represents that it is at least the legal age of majority.
  18. 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
    1. Neither party will be liable for any delay or failure in performance (except for any payment obligations) due to causes beyond its reasonable control.
    2. 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.
    3. 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.
    4. 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.
    5. All notices permitted or required under this Agreement will be in writing and will be delivered in person, by confirmed facsimile, overnight courier service or mailed by first class, registered or certified mail, postage prepaid. Such notice will be deemed to have been given upon receipt.
    6. This Agreement will be governed by the laws of the State of Washington, U.S.A., excluding its conflicts of law rules.
    7. 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.
    8. Any amendment or modification to the Agreement must be in writing signed by both parties.
    9. 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: (i) Order Form; (ii) this Agreement; (iii); 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 will control or supersede the Purchase Order Terms and void any additional obligations placed on Chef not contemplated by this Agreement.
    10. Each of the parties has caused this Agreement to be executed by its duly authorized representatives as of the Effective Date.
    11. 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.
    12. 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.
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