Sensu Commercial License Agreement

This Sensu Commercial License Agreement (this “Agreement”) is entered into by and between Sensu, Inc., a Delaware corporation, with a business address of P.O. Box 8308, Portland, Oregon 97207 ("Company”) (doing business in California as Delaware Sensu, Inc.), and the entity identified as customer through the order process (“Customer”). This Agreement is effective as of the license start date indicated through the order process (the “Effective Date”).

This Agreement governs Customer’s download, installation, and use of the Sensu software which includes Sensu Go and any other products and services provided by or made available by Company to Customer (the “Software”) and Company’s provision of support services for the Software (the “Services”). By using login credentials provided by the Company to access the Software, you represent that you have the authority to bind Customer, its affiliates, and all users who access or use the Software to the terms of this Agreement.

Terms and Conditions

1. License

Company grants Customer a nonexclusive license to download, install, and use the Software subject to the terms and conditions of this Agreement. This limited license allows use of the Software only with the number of units licensed by Customer.

2. Documentation

Documentation in printed or electronic form, if any, is subject to the same terms applicable to the Software.

3. Open-Source Components

The Software includes Sensu Go OSS (https://github.com/sensu/sensu-go), which is governed by the MIT open-source license (the “MIT License”), a copy of which is available under http://sensu.io/licenses/ . Any use of Sensu Go OSS by Customer will be governed by, and subject to, the terms and conditions of the MIT License.

4. Software Updates

All Software modifications, upgrades, and releases (“Software Updates”) provided to Customer under this Agreement are to be considered part of the Software, and may be downloaded, installed, and used by Customer subject to the terms and conditions of this Agreement. Nothing in this Agreement transfers title to any Software Updates to Customer.

5. Ownership of Software

Company owns all right, title, and interest, including all copyright, trademark, patent and any other proprietary and intellectual property rights embodied in the Software, including the source code, subject only to the rights of third parties in Open-Source Components and the limited license granted under this Agreement.

6. Copies and Modifications

The Software is protected by copyright laws. Except as expressly permitted under this Agreement, and subject to Section 3 with respect to Open-Source Components, Customer may not copy (including copying onto a public network), use, modify, display, sublicense, rent, sell, or distribute the Software or its source code. Customer may copy the Software (a) as necessary for the purpose of using it as permitted under this Agreement; and (b) for backup purposes.

7. Internal Use Only

Customer is not permitted to offer services to third parties from use of the Software. For more information on commercial licensing for managed service providers, please contact Company at sales@sensu.io.

8. No Reverse Engineering

Except as may be permitted under Section 3 with respect to Open-Source Components, Customer may not disassemble, decompile, reverse engineer, or decrypt the Software.

9. Proprietary Notices

Customer may not remove, change, or obscure any copyright, trademark, or other proprietary notices in the Software or on any associated media. Customer must include the notices in any authorized copies.

10. Login Credentials and Security.

Company will provide Customer with login credentials to access and download the Software and Software Updates (“Login Credentials”). Upon termination of the Agreement for any reason, Customer’s Login Credentials will be disabled. Customer must maintain the confidentiality of its Login Credentials and is responsible for all activities associated with its Login Credentials. Customer will immediately notify Company of any unauthorized use of Customer’s Login Credentials.

11. Confidentiality and Privacy.

11.1. Trade Secret Status

Customer acknowledges that the Software contains valuable trade secrets of Company, the disclosure of which would cause irreparable harm to Company.

11.2 Confidential Information.

Customer will keep confidential Software source code (other than the source code of Open-Source Components), non-public details of operation or implementation of the Software, the financial terms of this Agreement, and any other information that Company designates as confidential. In addition, Customer will keep confidential the financial terms of the Agreement. Customer will immediately report to Company any threatened or actual unauthorized use or disclosure of the Software or other confidential information that comes to Customer’s attention.

11.3 Permitted Disclosure.

The parties may disclose to other potential customers of Company and Customer the fact that Customer is using the Software, the general functions provided by the Software, and Customer’s general level of satisfaction with the Software.

11.3 Privacy Policy.

Customer acknowledges and agrees that Company’s Privacy Policy, set forth at https://sensu.io/privacy-policy is incorporated into these Terms and Conditions and the Agreement.

12. Support Services.

12.1 Standard Support.

Company will provide standard support services for the Software as set forth in the Sensu Support Services Agreement located at https://sensu.io/sensu-support-services and incorporated herein (“Services”).

12.2 Premium Support.

Customer may request, and Company may provide, additional support services or services related to Software customization or enhancement (collectively, “Premium Support”), as set forth in the Sensu Support Services Agreement located at https://sensu.io/sensu-support-services.

13. Informing Staff.

Customer will inform its employees of the obligations stated in this Agreement. Customer is responsible for any breach of the obligations by its employees, contractors, and consultants.

14. Fees and Payment.

14.1 Amount of Fees.

Fees for the paid version of the Software and the Support Services (“Fees”) are based on the number of units licensed with which the Software will be used. Prepaid Fees are not refundable.

14.2 Timing of Payments.

Customer will pay the Fees set forth on the ordering documents.

14.3 Failure to Pay Fees.

If Customer fails to pay any Fees or other amounts when due, and such failure continues for 30 days following written notice thereof, Company may, at its discretion, (a) suspend the license and Services under the Agreement, or (b) terminate the Agreement under Section 17. The remedies in this paragraph are in addition to any other remedies that may be available to Company.

15. Taxes.

All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on Company’s income.

16. Usage Reporting.

In the event that the total number of units in use by Customer exceeds the number of licensed units allowed by the Agreement (an “Excess Usage”), Customer agrees to notify Company of the “Excess Usage" within 30 days. Furthermore, Customer agrees to comply with Company’s requests to submit within 5 business days a complete and accurate report (a “Usage Report”) of the total number of installed copies of Software in use by Customer. Without limiting Company’s rights and remedies, Customer agrees to remedy any Excess Usage within 30 days of written notification. Excess Usage remedies include either (a) if Excess Usage has only occurred within the previous 30 days, uninstalling or deleting enough copies of the Software so that Customer’s usage is limited to the number of installed copies of the Software authorized under the Agreement, or (b) to pay within 30 days the fees applicable to Customer’s Excess Usage (the “Excess Usage Fees”) in an amount per rates set forth on https://sensu.io/pricing. Excess Usage Fees will be calculated as a prorated fee based on the volume of the Excess Usage, from the date such Excess Usage began until the termination of the Agreement.

17. Term/Termination.

17.1 Initial Term.

This Agreement begins on the Effective Date and continues for the duration of the term licensed unless terminated earlier as set forth herein.

17.2 Renewal Terms.

This Agreement will renew automatically for successive terms of a length equal to the then-current term unless either party gives the other party written notice of non-renewal at least 30 days prior to the end of the then-current term, or unless this Agreement terminates earlier as set forth herein. If the parties are engaged in a renewal involving modifications to this Agreement, and such renewal is not fully executed by the last day of the then-current term, then (a) Fees for Customer’s use of the Software after the expiration of the term of this Agreement will be calculated by reference to the Monthly Unit Cost per rates set forth on https://sensu.io/pricing, and (b) the renewal date of the new term will be adjusted accordingly.

17.3 Termination by Company.

Company may terminate the license upon written notice for Customer’s failure to comply with the Agreement (including these Terms and Conditions).

17.4 Effect of Termination.

Upon termination, Customer must immediately return or destroy the Software, together with all copies, adaptations and merged portions in any form. At Company’s request, Customer will certify under oath the extent to which Customer has complied with this section. On the effective date of termination, all amounts then owed to Company will become immediately due and payable.

18. Export Control.

For the purpose of Customer’s information only, Company has self-classified the Software as Export Control Classification Number (“ECCN”) 5D002. Company assumes no liability under the Agreement for any ECCN classification determination regarding the Software. Customer may not export or re-export the Software in violation of any applicable laws or regulations.

19. Limited Warranty.

Company warrants that the Software and documentation shall be delivered to Customer free of: (a) any instructions, devices or techniques installed by Company that can, or are designed to, threaten, infect, assault, vandalize, damage, disable, or shut down the Software and/or Customer’s processing environment or otherwise prevent Customer from utilizing the Software as intended (i.e., “viruses”); (b) any instructions or code intended by Company to prevent or limit Customer’s use of any Software or documentation or to cause any of the Software or documentation to cease functioning (i.e., “disabling devices"), or © any instructions or code intended by Company to allow access to Customer’s computing systems without Customer’s knowledge or without being in accordance with Customer’s system connectivity policies or system security measures (i.e., “trap doors”).

20. Disclaimer of All Other Warranties.

OTHER THAN AS PROVIDED IN SECTION 19 ABOVE, THE SOFTWARE, DOCUMENTATION, AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS,” AND COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, SUCH AS WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Although Company believes the Software to be reliable for business use, Company does not warrant that operation of the Software will be uninterrupted or error-free. Company does not warrant that its Services or the Software Updates will result in an improvement to the Software, a solution to any problem Customer may have with the Software, or error-free operation of the Software.

21. Responsibility for Use

The Software is provided as a tool for Customer to use as Customer sees fit in its business. Customer is solely responsible for understanding the limitations of the Software. Company is not responsible for any errors or omissions or for the results obtained from the use of the Software. Customer will indemnify Company against any loss, liability, or costs (including reasonable attorney fees at trial or in any other proceeding) incurred on account of its use of the Software, whether or not attributable to the Software’s operation. Customer shall not use the Software to further discriminatory, fraudulent, or illegal activities. Customer acknowledges that this section is an important term of this Agreement, that it permits Company to provide the Software at a reasonable price, and that Company would not provide the Software without this section. CUSTOMER IS RESPONSIBLE FOR PROTECTING ITS DATA USED IN CONNECTION WITH THE SOFTWARE.

22. Limited Remedy.

If the Software or any Software Update fails to perform substantially in accordance with Company’s expectations for it, Company, at its discretion, will (a) use commercially reasonable efforts to correct any errors in the Software Updates provided to Customer or (b) refund to Customer the amount charged for the Services (or if the Services were covered by the License Fee, the amount that would have been charged to Customer if the Services had been charged on an hourly basis). THIS SECTION STATES COMPANY’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY FAILURE OF THE SOFTWARE OR ANY SOFTWARE UPDATE TO PERFORM.

23. Limitation of Liability.

COMPANY’S LIABILITY TO CUSTOMER ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT. COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS PROFITS OR REVENUE) OF CUSTOMER OR ANY THIRD PARTY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER MAY BRING NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SOFTWARE OR SERVICES PROVIDED HEREUNDER MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CLAIM ON WHICH THE CAUSE OF ACTION IS BASED. THE LIMITATION IN THIS PARAGRAPH DOES NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 24.

24. Infringement.

Company will indemnify Customer for any costs, expenses, or damages of Customer pursuant to any claim, demand, or cause of action (“Demand”) by a third party to the extent the Demand alleges that the Software infringes such third party’s U.S. intellectual property rights. Company’s obligations under this paragraph will not apply to any demand to the extent it arises from (a) Open-Source Components; (b) Customer’s misuse of the Software or use of the Software outside the scope of the Agreement; or © modification of the Software other than by Company. If the Software is determined to infringe or, in Company’s view, is likely to be found to infringe third-party rights, Company will, at its sole option and its expense, either procure for Customer the right to continue using the Software or replace or modify the Software so that it becomes non-infringing. If, in Company’s sole opinion, neither option is desirable, Company may terminate the license under the Agreement and refund to Customer a pro rata portion of the applicable Fees. THE REMEDIES STATED IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF INFRINGEMENT.

25. Transfer/Assignment.

Subject to prior approval by Company, Customer may transfer the Software to a single recipient on a permanent basis provided Customer retains no copies of the Software and the recipient agrees in writing to the terms and conditions of this Agreement. Company may assign this Agreement at any time without prior consent of Customer.

26. Attorney Fees.

In any arbitration or litigation relating to this Agreement, the prevailing party will be entitled to recover all reasonable expenses of arbitration or litigation, including reasonable attorney fees at trial and on any appeal or petition for review, as determined by the judge or arbitrator.

27. Counterparts.

This agreement may be executed in one or more counterparts. Transmission of a signed copy by facsimile or email attachment will have the same effect as delivery of the signed original.

28. Force Majeure.

Company will not be responsible for delays or failures in performance resulting from causes beyond its control. Such causes include without limitation acts of God, war, riot, earthquake, embargo, acts of civil or military authorities, fire, flood, accident, strike, and shortages of transportation, facilities, fuel, energy, labor or material and any breakdown or interruption in service of communications, telecommunications, Internet, satellite, or any other medium of contact currently used or used in the future.

29. Governing Law; Venue.

This agreement is governed by Oregon law, excluding choice-of-law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The state and federal courts of Oregon will have exclusive jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with this Agreement. Venue for purposes of litigation will be Multnomah County, Oregon, and the parties waive all claims that such a forum is inconvenient or that a more convenient forum can be found.

30. Survival.

Provisions regarding responsibility for use, rights in Software, and limitations, and all other provisions that could reasonably be expected to survive termination, will remain in effect following termination or expiration of this Agreement.

31. Independent Contractor Status.

Company is an independent contractor and not an employee or agent of Customer. Company employees will not be eligible for any Customer-provided employee benefits.

32. Modification and Waiver.

No modification or waiver of the provisions of this Agreement will be binding unless made in writing and signed by both parties. NO DIFFERENT OR ADDITIONAL TERMS ON ANY PURCHASE ORDER OR OTHER FORM UTILIZED BY CUSTOMER IN CONNECTION WITH THE SOFTWARE OR COMPANY’S SERVICES WILL BE PART OF THIS AGREEMENT OR OTHERWISE BINDING ON COMPANY.

33. Notices.

Notices to Company must be given in writing or by electronic means to Sensu Inc, PO Box 8308, Portland, OR 97207, notices@sensu.io. Notices to Customer must be given in writing or by electronic means to the contact information provided by Customer as part of the registration process. A party may change its address, e-mail address, or fax number for notices by giving the other party notice of the change. Notice will be deemed given at the earliest of (a) the date received; (b) if sent by overnight courier, the next business day; or © if sent by U.S. certified mail, return receipt requested, the fourth (4th) following business day.

34. Severability.

If any restriction in this Agreement exceeds that permitted under applicable law, it is to be deemed modified to include the maximum permissible restriction. If any provision is nonetheless held unenforceable in any jurisdiction, the enforceability of this Agreement in any other jurisdiction and the enforceability of the remaining provisions in that jurisdiction will not be affected.

NOTE: These Sensu Commercial License Agreement were last updated on May 10, 2020. Prior versions can be obtained by contacting Sensu.