Rafay Systems, Inc.

Master Subscription Terms and Conditions

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY.

Customer and Rafay Systems, Inc. (“Rafay”) hereby agree as follows:

1. Scope. These Terms and Conditions shall apply to Customer’s use of Rafay’s lifecycle management platform for containerized applications deployed in a customer environment, ordered by Customer under a free trial or ordering document (including any online order) specifying the Services to be provided hereunder (“Order”). These Terms and Conditions and all Orders (collectively referred to as this “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Rafay ordering document, and no terms included in any such purchase order or other non-Rafay ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.

2. Free Trial. If Customer registers for a free trial, Rafay will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Services, or (b) the start date of any purchased subscriptions ordered for such Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES.

3. Right to Use the Services. During the Subscription Term set forth in an Order, Rafay grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to install and use the Services subject to the terms of the Agreement. Each Order is a term license and defines specific usage rights (“Usage Rights”), and Customer shall at all times ensure that its use does not exceed its Usage Rights.

4. Usage Restrictions and Representations.

4.1 Customer Environment. In a self-hosted deployment, the Software operates entirely within Customer's own infrastructure and environment. All Customer Data processed, stored, or generated through Customer's use of the Software remains exclusively within Customer's environment at all times. Rafay shall have no access to, and shall not collect, receive, transmit, or process any Customer Data, except to the limited extent Customer voluntarily provides Customer Data to Rafay in connection with a support request or professional services engagement, in which case such data shall be treated as Confidential Information under Section 10.

4.2 Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Rafay; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service.

4.3 Customer acknowledges and agrees that it has sole responsibility for implementing and maintaining appropriate security measures within the Customer Environment. Customer shall, at a minimum: (i) Implement and maintain appropriate network security controls, including firewalls, segmentation, intrusion detection/prevention systems, and secure connectivity; (ii) Secure all servers, operating systems, containers, storage systems, and endpoints, including applying hardening standards, patching, and malware protection; (iii) Establish and enforce authentication, authorization, and access control policies, including management of privileged access and user lifecycle processes; (iv) Maintain appropriate physical and environmental controls for facilities and hardware hosting the Rafay software; (v) Implement logging, monitoring, alerting, and incident response capabilities sufficient to detect, respond to, and remediate security incidents within the Customer Environment; (vi) Maintain formal processes for configuration management, change control, and system patching for all components within the Customer Environment; (vii) Ensure appropriate safeguards for Customer Data, including encryption, backup, recovery, and data retention practices; or (viii) Develop, implement, and maintain disaster recovery and business continuity plans for systems within the Customer Environment, (ix) Ensure that its deployment and use of the Rafay software complies with all applicable laws, regulations, and internal policies.  

4.4 No Rafay Liability. Rafay shall have no liability whatsoever arising out of or relating to: (a) any loss, corruption, unauthorized access to, or breach of Customer Data within Customer's environment; (b) Customer's failure to implement adequate security measures or maintain appropriate backups; or (c) Customer's failure to comply with applicable data protection laws in connection with its use of the Software. Customer shall defend, indemnify, and hold harmless Rafay from and against any claims, damages, fines, penalties, or costs arising out of or related to Customer's handling of Customer Data or failure to comply with applicable data protection obligations.

4.5 Rafay may, upon written notice to Customer, disable or render inoperable Customer's license keys and access credentials for the Software if (i) Customer fails to make payment due within ten (10) business days after Rafay has provided Customer with notice of such failure; or (ii) Customer materially violates Section 3, 4, or 10 of these Terms and Conditions. Prior to exercising any such remedy, Rafay shall provide Customer with written notice and a ten (10) business day cure period, except in cases of a Section 10 confidentiality breach or unauthorized distribution of the Software, in which case Rafay may act immediately. Any disablement of the Software by Rafay under this Section shall not relieve Customer of its payment obligations under this Agreement. Customer shall cooperate with Rafay to promptly uninstall or disable any copies of the Software subject to a valid disablement notice.

5. Ownership.

5.1 Rafay owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Rafay, and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Rafay.

5.2 Customer owns any data, information or material originated by Customer that Customer submits or provides in the course of using the Services (“Customer Data”). Rafay has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Rafay Services. Except to the extent Customer or any Users make any Customer Data accessible to other users or the public through the Services, Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 10 below. 

6. Billing and Payment.

6.1 Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 8.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Rafay’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.

6.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.

6.3 If at any time Rafay determines that Customer is exceeding the Usage Rights, Rafay shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Rafay’s notice, Rafay reserves the right to charge and Customer agrees to pay Rafay’s then-current usage fees for such overage.

7. Term and Termination.

7.1 The Agreement shall commence as of the date set forth in the first Order or the beginning of a free trial, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the end of the free trial if no purchased subscription is ordered). If a subscription is purchased, the Subscription Term will automatically renew for additional successive periods of time equal to the length of the original Subscription Term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

7.2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If Rafay terminates an Order for Customer’s material breach, all fees set forth on such Order are immediately due and payable.8. Representations, Disclaimer of Warranties, Indemnities.

8.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Rafay warrants to Customer that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Rafay of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.

8.2 For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Rafay cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Rafay for such deficient Services, and such refund shall be Rafay’s entire liability.

8.4 Rafay shall defend Customer against any third party claims, demands, suits, or proceedings (“Claims”) made or brought against Customer alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to Rafay; (b) gives Rafay sole control of the defense and settlement of the Claim (provided that Rafay may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Rafay, at Rafay’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Rafay, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Rafay, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Rafay to be infringing, Rafay may, at its option and expense (1) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (2) obtain for Customer a license to continue using the Service, or (3) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8.5 Customer shall defend Rafay against any Claims made or brought against Rafay alleging that Customer Data, or Customer’s use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation and shall pay all costs and damages finally awarded against Rafay by a court of competent jurisdiction as a result of such Claim; provided, that Rafay (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Rafay of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

8.6 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, RAFAY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. RAFAY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RAFAY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING THE SOFTWARE AND SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.

9. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF CUSTOMER’S LIABILITY, PAID AND/OR PAYABLE) BY CUSTOMER IN THE PRECEDING 12 MONTHS.

10. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law.

11. Notices. Rafay may give notice to Customer by electronic mail to Customer’s e-mail address on record in Rafay’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Rafay’s account information. If Customer has a dispute with Rafay, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Rafay Systems, Inc. at 530 Lakeside Drive, Suite 220, Sunnyvale, CA 94085, USA, Attn: Legal.

12. Publicity. Customer agrees that Rafay may refer to Customer’s name and trademarks in Rafay’s marketing materials and website, unless indicated to the contrary on the applicable Order; however, Rafay will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

13. Audit Rights. Rafay shall have the right, upon reasonable prior written notice of no less than thirty (30) days and no more than once per calendar year, to audit Customer's deployment and use of the Software solely to verify compliance with the Usage Rights set forth in the applicable Order. Any such audit shall be conducted during Customer's normal business hours in a manner that does not unreasonably disrupt Customer's operations, and may be performed by Rafay or a mutually agreed-upon independent third party subject to confidentiality obligations no less protective than those set forth in Section 10. Customer shall maintain accurate records of its use and deployment of the Software during the Subscription Term and for two (2) years thereafter. If an audit reveals that Customer has exceeded its Usage Rights, Customer shall pay Rafay's then-current fees for such excess usage within thirty (30) days of written notice, provided that such underpayment exceeded five percent (5%) of the fees paid during the audited period. Rafay shall bear the costs of any audit unless the audit reveals an underpayment exceeding five percent (5%) of fees due, in which case Customer shall reimburse Rafay's reasonable audit costs.

14. General provisions.

14.1 Any action, Claim, or dispute related to the Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

14.2 The Agreement and all Order(s), represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement and such Order. The Agreement may be amended only by written agreement signed by the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

14.3 No joint venture, partnership, employment, or agency relationship exists between Rafay and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.

14.4 Compliance with Law. Customer will at all times have all necessary legal permits and licenses required by any governmental unit or agency and will comply with all applicable international, national, state, regional and local laws and regulations, including without limitation the US Foreign Corrupt Practices Act (the “FCPA”) and all anti-bribery laws applicable in any country in which Customer is buying or selling Products, in performing its duties hereunder and in any of its dealings with respect to Rafay and the Products.  Customer will not pay, offer, give or promise to pay or give, any monies or anything of value, directly or indirectly to: (a) any officer or employee of any government, or any department, agency or instrumentality of any government; (b) any other person acting for, or on behalf of, any government, or any department, agency or instrumentality of any government; (c) any political party or any official of a political party; (d) any candidate for political office; (e) any officer, employee or other person acting for, or on behalf of, any public international organization; or (f) any other person, firm, corporation or other entity at the suggestion, request or direction of, or on behalf of, any of the foregoing persons.

14.5 Compliance with Financial Crimes. The Parties shall each do all that is necessary and within their respective power and control to ensure that it will not at any time offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier (whether a public official or otherwise) with the intention of influencing them and obtaining an advantage in the conduct of its business.

15. Software Delivery and Acceptance.

15.1 Delivery. Rafay shall make the Software available to Customer by electronic download or such other delivery method as specified in the applicable Order. Rafay shall provide Customer with the necessary license keys, access credentials, or repository access required to download and install the Software promptly following execution of the applicable Order and receipt of any applicable fees. Customer shall be responsible for downloading, installing, and configuring the Software within its own environment in accordance with Rafay's documentation.

15.2 Integrity. Customer is responsible for verifying the integrity of any Software it downloads or receives, including through the use of any checksums or digital signatures provided by Rafay. Rafay shall not be liable for any corruption, tampering, or unauthorized modification of the Software that occurs after delivery to Customer.

16. Termination Obligations.

16.1 Upon any termination or expiration of an Order or this Agreement for any reason, Customer's license to use the Software covered by that Order shall immediately terminate. Within thirty (30) days following such termination or expiration, Customer shall: (a) permanently uninstall and destroy all copies of the Software in Customer's possession or control, including all installations across production, development, test, and staging environments; (b) destroy or return to Rafay all related documentation, license keys, and access credentials provided by Rafay; and (c) provide Rafay with written certification signed by an authorized officer of Customer confirming that all copies of the Software have been uninstalled and destroyed in accordance with this Section.

16.2 Rafay reserves the right to audit Customer's compliance with this Section 16 in accordance with the audit rights set forth in Section 13.

17. Export Controls.

17.1 Customer acknowledges that the Software and related technical data may be subject to export control laws and regulations, including the U.S. Export Administration Regulations ("EAR") administered by the U.S. Department of Commerce, the International Traffic in Arms Regulations ("ITAR") administered by the U.S. Department of State, and the economic sanctions programs administered by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"). Customer shall comply with all applicable export control and sanctions laws and regulations in connection with its receipt, installation, use, and transfer of the Software.

17.2 Customer represents and warrants that: (a) it is not located in, organized under the laws of, or ordinarily resident in any country or territory that is subject to comprehensive U.S. sanctions (b) it is not listed on, and is not owned or controlled by any person or entity listed on, any U.S. government restricted party list, including the Specially Designated Nationals and Blocked Persons List, the Entity List, or the Denied Persons List; and (c) it will not use, transfer, or re-export the Software in violation of any applicable export control or sanctions laws or regulations.

17.3 Customer shall be solely responsible for obtaining any export licenses or other governmental approvals required for the export, re-export, or transfer of the Software and shall indemnify and hold harmless Rafay from and against any claims, penalties, fines, or losses arising out of Customer's failure to comply with this Section.