Sensu Commercial License Agreement

This Sensu Commercial License Agreement (the “Agreement”) is entered into as of the Start Date indicated in the Order Form (the “Effective Date”) by and between Sumo Logic, Inc. (“Sumo Logic”) and the customer identified in the Order Form (“Customer”) (each, a “Party,” collectively, the “Parties”) (or, if applicable, the license start date specified in the ordering process) and governs Customer’s use of the products and services made available by Sumo Logic to Customer under this Agreement (collectively, the “Software”). By downloading, installing, and/or using the Software (or executing an Order Form or Statement of Work that references this Agreement), Customer agrees to the terms of this Agreement. If an individual is entering into this Agreement on behalf of a company (or other legal entity), Customer represents that individual has the legal authority to bind Customer. If no such authority exists (or if you do not agree with the terms and conditions of this Agreement), you should not accept this Agreement or use the Software. This Agreement was updated July 19, 2021.

1. License. Subject to the terms and conditions of this Agreement, Sumo Logic grants to Customer a non-exclusive license to download, install, and use the Software (“License”) by the number of units licensed by Customer (“Licensed Unit(s)”).

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

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

4. Software Update(s). All Software modifications, upgrades, and releases provided by Sumo Logic to Customer under this Agreement (“Software Update(s)”) are considered part of the Software, and may be downloaded, installed, and used/or by Customer pursuant to the terms and conditions of this Agreement.

5. Ownership of Software. Except as expressly provided in this Agreement (or any applicable Order Form or Statement of Work), as between Sumo Logic and Customer, Sumo Logic owns and retains all right, title and interest (including all intellectual property rights) in and to the Software, including all aspects of the technology and branding, source code, and any software or other materials including without limitation any analytics, reports or aggregated, anonymized data developed or created by or on behalf of Sumo Logic in connection with delivery of the Software hereunder. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Software, whether expressly, by implication, estoppel or otherwise.

6. Feedback.  Customer may (from time to time) submit comments, suggestions, and/or other feedback to Sumo Logic in connection with Customer’s use of the Software (“Feedback”).  Customer agrees it will not submit any Feedback that contains Customer Confidential Information.  Customer hereby grants to Sumo Logic a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, and fully paid-up license to use, and exploit, the Feedback for any lawful purpose.

7. Copies; Modifications. The Software is protected by copyright laws. Except as expressly permitted under this Agreement (and subject to Section 3), 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.

8. 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: partners@sumologic.com.

9. No Reverse Engineering. Except as expressly permitted under Section 3, Customer may not disassemble, decompile, reverse engineer, or decrypt the Software (or any component thereof).

10. 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.

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

12. Confidentiality.

    a. Confidential Information. Each Party receiving information under this Agreement (the “Receiving Party”) may have access to information which is confidential or proprietary to the other Party (“Confidential Information”). Confidential Information shall mean any information that is directly or indirectly disclosed or made accessible by or on behalf of a Party (or its Affiliates) (the “Disclosing Party”) that is marked as confidential or which, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary, including product specifications, pricing, data, proposals, business models, marketing plans and strategic plans, customer and employee information, financial information, software, reports or forms of the Disclosing Party.

    b. Protection of Confidential Information. The Receiving Party agrees to use such Confidential Information solely to perform its respective obligations under this Agreement and will take reasonable measures to avoid unauthorized disclosure or use, including, but not limited to, taking at least those measures it takes to protect its own similar Confidential Information. Each Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to the Receiving Party’s employees and Representatives (defined below) except to those who: (i) have a direct “need to know” such information; and (ii) are already legally bound to maintain its confidentiality. The Parties acknowledge and agree that breach of this Section 12 may cause irreparable harm to a Disclosing Party, entitling the Disclosing Party to seek injunctive relief without requiring the posting of a bond in addition to all legal or equitable remedies available. Notwithstanding the foregoing, Confidential Information shall not include any information which: (i) is publicly known and is made generally available through no fault of the Receiving Party; (ii) is already in the possession of the Receiving Party without obligation of confidentiality at the time of disclosure by the Disclosing Party; (iii) is obtained by Receiving Party from a third party without, to Receiving Party’s knowledge, a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by Receiving Party without use of, or reference to, Disclosing Party’s Confidential Information.

    c. Compelled Disclosure. If Receiving Party is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the Receiving Party will (if lawful) provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party, at its sole expense, may seek a protective order or other appropriate relief. If such protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party or its employee will furnish that portion (and only that portion) of Confidential Information that is legally compelled or is otherwise legally required to disclose; provided, however, that the Receiving Party provides such assistance at the Disclosing Party’s expense and as the Disclosing Party may reasonably request in obtaining such order or other relief.

    d. Privacy Policy. Customer’s use of the Software is conditioned upon Customer’s acceptance of Sensu’s Privacy Policy (as may be amended from time to time) available at: https://sensu.io/privacy-policy (or its successor site) (“Privacy Policy”).

    e. Publicity. The Parties may disclose to other potential customers of Sumo Logic 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.

13. Support Services.

    a. Standard Support. Sumo Logic will provide standard support for the Software (“Standard Support”) in accordance with the Support Services Agreement (available at: https://sensu.io/sensu-support-services) (the “Support Agreement”).

    b. Premium Support. Customer may request, and Sumo Logic may provide, additional premium support for the Software (collectively, “Premium Support”), as set forth in the Support Agreement.

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

15. Fees; Payment Terms; Taxes.

    a. Fees.  Fees for the Software (“Fees”) are based on the number of Licensed Unit(s) purchased.  Prepaid Fees are non-refundable.

    b. Payment Terms.  Customer will pay the Fees in accordance with the payment terms in the applicable Order Form.

    c. Failure to Pay Fees. If Customer fails to pay any Fees or other amounts when due, and such failure continues for thirty (30) days following written notice thereof, Sumo Logic may, at its discretion: (a) immediately suspend Customer’s License and use of the Software; or (b) terminate the Agreement pursuant to Section 16. The remedies in this Section 15c are in addition to any other remedies that may be available to Sumo Logic.

    d. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments, including, for example, value-added, sale, use, property, or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying any Taxes associated with its purchases hereunder. If Sumo Logic has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, Sumo Logic will invoice Customer and Customer will pay that amount unless Customer provides Sumo Logic a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sumo Logic is solely responsible for taxes assessable against it based on its net income, property and employees.

    e. Excess Usage.  If the total number of Licensed Unit(s) in use by Customer exceeds the number purchased by Customer in the applicable Order Form (“Excess Usage”), Customer agrees to notify Sumo Logic of the “Excess Usage” within thirty (30) days. Furthermore, Customer agrees to comply with Sumo Logic’s requests to submit within five (5) business days a complete and accurate report (“Usage Report”) of the total number of installed copies of the Software in use by Customer. Without limiting Sumo Logic’s rights and remedies, Customer agrees to remedy any Excess Usage within thirty (30) days of written notification. Excess Usage remedies include either: (a) if Excess Usage has only occurred within the previous thirty (30) days, uninstalling or deleting enough copies of the Software so that Customer’s actual usage is limited to the number of Licenses Unit(s) purchased by Customer in the applicable Order Form; or (b) to pay within thirty (30) days the fees applicable to Customer’s Excess Usage (the “Excess Usage Fees”) at the rates set forth on the Sensu pricing page (available at: 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.

16. Term and Termination.

    a. Term.  This Agreement begins on the Effective Date and shall continue, with respect to any Order Form or Statement of Work, for as long as such Order Form or Statement of Work remains in effect (the “Term”).

    b. Termination. Either Party may terminate an Order Form or Statement of Work upon thirty (30) days prior, written notice to the other Party if the other Party commits a material breach of such Order Form or Statement of Work (or this Agreement); provided, however, that such Order Form or Statement of Work will not terminate if the other Party cures such breach by the end of the thirty (30) day period. In the event Customer terminates an Order Form or Statement of Work for Sumo Logic’s uncured material breach in accordance with the previous sentence, Customer would be entitled to a pro rata refund of any pre-paid fees for the remaining portion of the Term of such Order Form or Statement of Work following such termination. In addition, Sumo Logic may terminate any Order Form or Statement of Work upon notice to Customer if Sumo Logic reasonably believes that Customer is engaging in any business or conduct that may be illegal, fraudulent, tortious, or if Sumo Logic determines in good faith that termination is necessary to comply with applicable laws following a breach of this Agreement by Customer.

    c. Effects of Termination. Upon expiration or termination of the Agreement for any reason: (i) any amounts owed to Sumo Logic under this Agreement including any Order Form(s) and/or Statement(s) of Work before such termination will be immediately due and payable; (ii) Customer will immediately return or destroy the Software, together with all copies, adaptations and merged portions in any form; and (iii) upon Sumo Logic’s written request, Customer will certify under oath the extent to which Customer has complied with this Section 16c.

17. Export Control.  For clarity, Sumo Logic has self-classified the Software as Export Control Classification Number (“ECCN”) 5D002.  Sumo Logic 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.

18. Limited Warranty.  Sumo Logic warrants that the Software and documentation shall be delivered to Customer free of: (i) any instructions, devices or techniques installed by Sumo Logic 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”); (ii) any instructions or code intended by Sumo Logic 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 (iii) any instructions or code intended by Sumo Logic 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”).

19. DISCLAIMER.   OTHER THAN AS PROVIDED IN THIS AGREEMENT, THE SOFTWARE, SOFTWARE UPDATES, DOCUMENTATION, AND SOFTWARE PROVIDED BY SUMO LOGIC ARE PROVIDED “AS IS,” AND SUMO LOGIC MAKES NO EXPRESS OR IMPLIED WARRANTIES, SUCH AS WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  SUMO LOGIC DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SUMO LOGIC DOES NOT WARRANT ANY SOFTWARE UPDATE (OR SERIES OF SOFTWARE UPDATES) WILL RESULT IN: (I) AN IMPROVEMENT TO THE SOFTWARE, (II) THE RESOLUTION OF A SPECIFIC PROBLEM (OR PROBLEMS) CUSTOMER MAY HAVE WITH THE SOFTWARE, OR (III) ERROR-FREE OPERATION OF THE SOFTWARE.

20. Responsibility for Use. Customer acknowledges and agree it is solely responsible for understanding the limitations of the Software. Sumo Logic is not responsible for any errors or omissions or for the results obtained from Customer’s the use of the Software. Customer agrees to indemnify and hold harmless Sumo Logic against all 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 operation. Customer shall not use the Software to further discriminatory, fraudulent, and/or illegal activities. Customer acknowledges this Section 20 is an important term of this Agreement, that it permits Sumo Logic to provide the Software at a reasonable price, and that Sumo Logic would not provide the Software without this Section 20. CUSTOMER IS RESPONSIBLE FOR PROTECTING ITS DATA USED IN CONNECTION WITH THE SOFTWARE.

21. Limited Remedy. If the Software fail to perform substantially in accordance with Sumo Logic’s expectations for the Software, then Sumo Logic, at its discretion, will: (a) use commercially reasonable efforts to correct any errors in the Software; or (b) refund to Customer the amount charged for the Software (or if the Software were covered by the License Fee, the amount that would have been charged to Customer if the Software had been charged on an hourly basis).  THIS SECTION 21 STATES SUMO LOGIC’S SOLE OBLIGATION AND LIABILITY TO CUSTOMER AND CUSTOMER’S SOLE REMEDY FOR ANY FAILURE OF THE SOFTWARE TO PERFORM.

22. LIMITATION OF LIABILITY. SUMO LOGIC’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. SUMO LOGIC SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS PROFITS OR REVENUE) OF CUSTOMER OR ANY THIRD PARTY, EVEN IF SUMO LOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER MAY BRING NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SOFTWARE 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 SUMO LOGIC’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 23.

23. Infringement. Sumo Logic 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 the Software infringes any third-party U.S. intellectual property right.  Sumo Logic’s obligations under this Section 23 will not apply to any demand to the extent it arises from: (i) Section 3 (Open-Source Components); (ii) Customer’s use of the Software in a manner outside the scope of the rights granted by Sumo Logic to Customer pursuant to this Agreement; or (iii) modification of the Software other than by Sumo Logic. If the Software is determined to infringe or, in Sumo Logic’s view, is likely to be found to infringe third-party rights, Sumo Logic 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 Sumo Logic’s sole opinion, neither option is desirable, Sumo Logic may elect to immediately terminate the License and refund to Customer a pro rata portion of the applicable Fees. THE REMEDIES STATED IN THIS SECTION 23 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF INFRINGEMENT.

24. General.

    a. Assignment. Sumo Logic may assign this Agreement at any time without prior consent of Customer.

    b. 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.

    c. Force Majeure. Except with respect to failure to pay any amount due under this Agreement, non-performance of either Party will be excused to the extent that performance is rendered impossible by acts of God, strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, internet failure, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing Party.

    d. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of any conflicts of law rules or principles and without regard to the United Nations Convention on the International Sale of Goods.  All claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts for San Mateo County, California, and Customer consents to such personal jurisdiction of those courts.

    e. Survival. All provisions regarding responsibility for use, rights in the Software, limitations, and other provisions reasonably expected to survive termination or expiration of this Agreement will remain in effect following termination or expiration of this Agreement.

    f. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create or imply any partnership, agency, or joint venture. Sumo Logic is an independent contractor and not an employee or agent of Customer. Sumo Logic employees will not be eligible for any Customer-provided employee benefits.

    g. Modification; Waiver. No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties. No waiver of any right is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. To the extent Customer provides a purchase order or similar document that includes additional terms and conditions, such terms and conditions will not be deemed to modify or otherwise supplement this Agreement.

    h. Notice. Any notice or other communication under this Agreement given by any Party to any other Party must be in writing and will be effective upon delivery as follows: (A) if to Customer: (i) when delivered via registered mail, return receipt requested, to the address specified in the applicable Order Form; or (ii) when sent via email to the email address specified in the applicable Order Form; and (B) if to Sumo Logic, when sent via registered mail, return receipt requested, to Sumo Logic at: 305 Main Street, Redwood City, California 94063 or such other address which Sumo Logic may specify from time to time, with a copy to legal@sumologic.com.

    i. Counterparts. This Agreement may be executed in counterparts, all of which together constitute a single agreement and any one of which are deemed an original.

    j. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible reflects the Parties original intent.

    k. Electronic Signature. The Parties agree the electronic signature of a Party to an Order Form or Statement of Work shall be as valid as an original signature of such Party and shall be effective to bind such Party to such Order Form or Statement of Work.  The Parties agree that any electronically signed document (including, for example, an Order Form, whether signed through a cloud-based electronic signature service, or by providing a scan of the signed document) shall be deemed to: (i) be a “writing;” (ii) have been validly signed; and (iii) constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files.