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KONTENA LICENSE AGREEMENT

PLEASE READ CAREFULLY THIS KONTENA LICENSE AGREEMENT ("AGREEMENT"), WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN KONTENA INC. (“KONTENA”) AND YOU, OR THE LEGAL ENTITY ON BEHALF OF WHOM YOU ARE ACTING (AS APPLICABLE, “YOU”). THIS AGREEMENT GOVERNS THE TERMS AND CONDITIONS FOR USING SOFTWARE THAT KONTENA DESIGNATES AS LICENSED UNDER THIS AGREEMENT ("KONTENA SOFTWARE"), INCLUDING BUT NOT LIMITED ANY INSTALLATIONS, ENVIRONMENTS AND CONFIGURATIONS CREATED THROUGH THE USE OF SUCH SOFTWARE (“RUNTIME ENVIRONMENTS”). BY INSTALLING OR USING KONTENA SOFTWARE OR RUNTIME ENVIRONMENTS, YOU AGREE ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE KONTENA SOFTWARE. IF YOU ARE INSTALLING OR USING THE SOFTWARE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL AUTHORITY TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF SUCH ENTITY.

Posted Date: October 23, 2018

  1. LICENSES, RESTRICTIONS AND THIRD-PARTY OPEN SOURCE SOFTWARE

    1.1. Evaluation License. Subject to the terms and conditions of this Agreement, Kontena hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a limited, non-exclusive, non-transferable, fully paid up, royalty free, right and license, without the right to grant or authorize sublicenses, to: (i) install and use Kontena Software; (ii) develop and use Runtime Environments; and (iii) permit contractors and Your Affiliates to use the Kontena Software and Runtime Environments as set forth in (i) and (ii) above, provided that such use by contractors must be solely for Your benefit and/or the benefit of Your Affiliates; and further provided that all use of the Kontena Software and Runtime Environments by You or by contractors or Affiliates on your behalf shall be for internal evaluation purposes only. You shall be responsible for all acts and omissions of all contractors and Affiliates in connection with their use of the Kontena Software and Runtime Environments. For purposes of this Agreement, “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.

    1.2. Source Code License. Subject to the terms and conditions of this Agreement, Kontena hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a limited, non-exclusive, non-transferable, fully paid up royalty free right and license to use the source code and files that are made available to You via (i) Kontena’s GitHub account (https://github.com/kontena) repositories and licensed to you under this Agreement; (ii) contents of directories in any Kontena GitHub account repository labeled as “non-oss” with a reference to this Agreement; and (iii) any source code and file that may be included in a container image or VM image having a reference to this Agreement (“Non-OSS Software Source Code”), to modify and compile custom versions of such software, provided You (i) do not hack, alter or attempt to circumvent any Kontena licensing or monitoring mechanism, and (ii) use the custom versions of such software only for Your own temporary testing purposes and not in any Production Environment (as defined below). You may always request Kontena to accept your modifications to Non-OSS Software Source Code upstream via GitHub pull request. Notwithstanding the foregoing, You may maintain a copy of the Non-OSS Software Source Code and that copy may be made publicly accessible, provided that you include this Agreement with Your copy of the Non-OSS Software Source Code.

    1.3. License Restrictions. Except as expressly set forth in Sections 1.1, and 1.2 of this Agreement, no other licenses are granted to You under this Agreement, by implication, estoppel or otherwise. For clarity, and without limiting other conditions in this Agreement, the grant of rights under this Agreement does not grant to You the right to use Kontena Software or Runtime Environments in Production Environments without valid Subscription. For purposes of the foregoing, “Production Environment” means any use of Kontena Software or Runtime Environments in any capacity beyond internal product evaluation purposes. For avoidance of doubt, post-evaluation environments that are used for roll-out, testing or development purposes are considered as Production Environments. “Subscription” means a paid service provided by Kontena to You and covers the use of Kontena Software and Runtime Environments in Production Environments and related support (if applicable). You shall not (i) reverse engineer any parts of the Kontena Software, except and only to the extent any such restriction is prohibited by applicable law, (ii) except as expressly permitted in this Agreement, prepare derivative works from, modify, copy or use the Kontena Software in any manner; (iii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Kontena Software, in whole or in part, to any third party; (iv) circumvent the limitations on use of Kontena Software, or (v) alter or remove any Kontena trademarks, trade names, logos and notices present on the Kontena Software or documentation as originally provided by Kontena. If You have any question as to whether a specific license restriction described in here applies to You, or are interested in obtaining Subscription for using Kontena Software and Runtime Environments in Production Environments, please contact sales@kontena.io.

    1.4. Subscription License. Should you acquire a Subscription to use the Kontena Software in a Production Environment, then subject to your compliance with the terms of this Agreement (including, without limitation, your payment of any applicable Subscription fees), Kontena hereby grants You a non-exclusive, non-transferable, worldwide, limited-term license to install use the Kontena Software and Runtime Environments during the applicable Subscription term for which You have subscribed, in accordance with the Documentation, solely for your internal business purposes, and limited to the number of clusters and nodes indicated on Your Subscription documentation. Your contractors and Affiliates may install, execute, and use the Kontena Software and Runtime Environments under this Subscription license as well, so long as they're using it solely on your behalf and under the terms of this Agreement, and provided that You agree to be fully responsible for their compliance with this Agreement. For avoidance of doubt, the foregoing Subscription license does not expand the source code license in Section 1.2 and you are not permitted to use any modified version of the Kontena Software or Runtime Environments in a Production Environment.

    1.5. Third Party Open Source Software. The Kontena Software and Runtime Environments may contain or be provided with third party open source libraries, components, utilities and other open source software (collectively, "Open Source Software"), which Open Source Software may have applicable license terms as identified by Kontena. Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to You hereunder, but may contain additional rights). To the extent any condition of this Agreement conflicts with any applicable license to the Open Source Software, the Open Source Software license will govern with respect to such Open Source Software only. Kontena may also separately provide you with certain open source software that is licensed by Kontena. Your use of such Kontena open source software will not be governed by this Agreement, but by the applicable open source license terms.

    1.6. Reservation of Rights. Kontena and owns all right, title and interest in and to the Kontena Software and any Kontena-owned open source software.

  2. TERMINATION

    2.1. Termination. This Agreement will automatically terminate, whether or not You receive notice of such Termination from Kontena, if You breach any of its provisions.

    2.2. Post Termination. Upon any termination of this Agreement, for any reason, You shall promptly cease the use of the Kontena Software, including all Runtime Environments and any customized Kontena Software. For the avoidance of doubt, termination of this Agreement will not affect Your right to use the Open Source Software.

    2.3. Survival. Sections 1.3, 1.6, 2.3, 3 and 4 shall survive any termination or expiration of this Agreement.

  3. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

    3.1. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE KONTENA SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND KONTENA AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE KONTENA SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KONTENA AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE KONTENA SOFTWARE, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, KONTENA DOES NOT WARRANT RESULTS OF USE OR THAT THE KONTENA SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE KONTENA SOFTWARE WILL BE UNINTERRUPTED.

    3.2. Limitation of Liability. IN NO EVENT SHALL KONTENA OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE KONTENA SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF KONTENA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  4. MISCELLANEOUS

    This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be modified by Kontena from time to time, and any such modifications will be effective upon the "Posted Date" set forth at the top of the modified Agreement. If any provision hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties. This Agreement and any non-contractual obligation arising out of or in connection with it, is governed exclusively by laws of Finland. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this Agreement, including its existence and validity, shall be resolved by the courts with jurisdiction in Helsinki, Finland. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach or threatened breach, by You of Section 1 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore Kontena shall be entitled to seek injunctive relief without being required to post a bond. You may not assign this Agreement (including by operation of law in connection with a merger or acquisition), in whole or in part to any third party without the prior written consent of Kontena, which may be withheld or granted by Kontena in its sole and absolute discretion. Any assignment in violation of the preceding sentence is void. Notices to Kontena may also be sent to legal@kontena.io.