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.), grants to the entity (“Customer”) who enters into the Sensu Enterprise End User License Agreement (“Agreement”) a nonexclusive license to download, install, and use the Sensu Enterprise software (the “Software”), subject to the following terms and conditions (“Terms and Conditions”). This limited license allows use of the Software only with the number of units designated by Customer in the Agreement.
Documentation in printed or electronic form, if any, is subject to the same terms applicable to the Software.
The Software includes Sensu Core, which is governed by the MIT open-source license (the “MIT License”), as follows:
MIT License Copyright (c) 2014 Sonian Inc. Permission is hereby granted, free of charge, to any person obtaining a copy of this software [i.e., the Sensu Core software] and associated documentation files ([for purposes of this subparagraph of these Terms and Conditions only] the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Any use of Sensu Core by Customer will be governed by, and subject to, the terms and conditions of the MIT License.
All Software modifications, upgrades, and releases (“Software Updates”) provided to Customer under the Agreement are to be considered part of the Software, and may be downloaded, installed, and used by Customer subject to these Terms and Conditions. Nothing in the Agreement transfers title to any Software Updates to Customer.
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 Sensu Core and the limited license granted under the Agreement.
The Software is protected by copyright laws. Except as expressly permitted under the Agreement, and subject to Section 3 with respect to Sensu Core, 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 the Agreement; and (b) for backup purposes.
Except as may be permitted under Section 3 with respect to Sensu Core only, Customer may not disassemble, decompile, reverse engineer, or decrypt the Software.
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.
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.
Customer acknowledges that the Software contains valuable trade secrets of Company, the disclosure of which would cause irreparable harm to Company.
Customer will keep confidential Software source code (other than Sensu Core source code), details of operation or implementation of the Software, and 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.
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.
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”).
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.
Customer will inform its employees of the Customer’s obligations under the Agreement. Customer is responsible for any breach of the obligations by its employees, contractors, and consultants.
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 16. The remedies in this paragraph are in addition to any other remedies that may be available to Company.
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.
In the event that the total number of installed copies of Software in use by Customer exceeds the number of copies 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.
Company may terminate the license upon written notice for Customer’s failure to comply with the Agreement (including these Terms and Conditions).
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.
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.
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”).
OTHER THAN AS PROVIDED IN SECTION 18 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.
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 of Customer or for the results obtained from the use of the Software by Customer. Customer will indemnify Company for any loss, liability, or costs (including reasonable attorney fees at trial or in any other proceeding) arising from Customer’s use of the Software. 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 ANY OF CUSTOMER’S DATA THAT IS USED IN CONNECTION WITH THE SOFTWARE.
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) Sensu Core; (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.
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.
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.
COMPANY’S LIABILITY TO CUSTOMER ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER UNDER THE AGREEMENT. THIS LIMITATION OF AMOUNT OF LIABILITY DOES NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATION UNDER SECTION 21 OF THE AGREEMENT. IN ANY EVENT, NO PARTY TO THE AGREEMENT SHALL HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE) OF ANY PARTY OR ANY THIRD PARTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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 obligations of the Agreement and these Terms and Conditions. Company may assign the Agreement at any time without prior notice to, or consent of, Customer.
Neither party to the Agreement will 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, fire, flood, accident, strike, 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.
The Agreement (including these Terms and Conditions) is governed by the law of the United States of America, and any one of the states therein (which state’s law shall be determined by any court of competent jurisdiction should a dispute arise relating to the Agreement). The parties to the Agreement agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern the Agreement.
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 the Agreement.
Company is an independent contractor and not an employee or agent of Customer.
Except as may be set forth explicitly in the Agreement, no modification or waiver of the provisions of the Agreement or these Terms and Conditions will be valid or enforceable unless made in writing and executed by the 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 THE AGREEMENT OR OTHERWISE BINDING ON COMPANY.
If any restriction in the Agreement or these Terms and Conditions exceeds that permitted under applicable law, it is to be deemed modified to provide for the maximum permissible restriction. If any provision is nonetheless held unenforceable in any jurisdiction, the enforceability of the Agreement in any other jurisdiction and the enforceability of the remaining provisions in that jurisdiction will not be affected.
The Agreement may be executed in one or more counterparts. Transmission of a signed copy by facsimile, email attachment, or by electronic transmission of signature will have the same effect as delivery of the signed original.
NOTE: These Sensu Enterprise License Terms and Conditions were last updated on December 9, 2018. Prior versions can be obtained by contacting Sensu.
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