THIS MASTER SUBSCRIPTION AGREEMENT (the “Master Subscription Agreement”), including all exhibits, schedules and Order Forms (as defined below) hereto is made and entered into as of the date of the most recent Order Form accepted by Customer (the “Effective Date”), by and between Illumio, Inc. a Delaware corporation, at 160 San Gabriel Drive, Sunnyvale, CA 94086 (“Illumio”), and the party indicated on the applicable Order Form (“you” or “Customer”).
Certain capitalized terms used in the Agreement are defined in, and shall have the meanings, set forth in Section 12 below.
The provisions of the Master Subscription Agreement will apply to all Subscription Products provided by Illumio. Certain supplemental terms will apply to and govern only specific Subscription Products that are licensed, purchased or provided to the Customer under the applicable Order Form (the “Supplemental Terms,” together with the Master Subscription Agreement, the “Agreement”), as indicated below:
1. Subscription Products. Subject to Customer’s compliance with this Agreement, Illumio shall provide Customer with the rights and services set forth in the applicable Order Form. For clarity, use of the Services is subject to the Supplemental Terms applicable to Subscription Products.
2. Fees. In consideration for Illumio providing the Subscription Products, Customer shall pay Illumio the fees (“Fees”) in accordance with the amounts and dates specified on the applicable Order Form. The Fees set forth in each Order Form will be invoiced upon execution of the applicable Order Form. If Customer obtains the Subscription Products from a Reseller, Customer may pay the Fee to the Reseller and not to Illumio directly. Except as otherwise specified, Fees are based on Subscription Products purchased and not actual usage of the Subscription Products. All Fees and payment obligations are non-refundable and non-cancellable. Customer shall pay all Fees according to the payment schedule set forth in the applicable Order Form. Customer shall pay all taxes and duties assessed in connection with this Agreement, and the performance of the duties hereunder, by any authority within or outside of the U.S., except for taxes payable on Illumio’s net income. Illumio shall invoice Customer for all such taxes and duties unless Customer provides Illumio with a valid tax exemption certificate authorized by the appropriate taxing authorities. All amounts not paid when due under this Agreement will accrue interest daily (without the requirement of a notice) at a rate of one and one-half percent (1.5%) per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full. Upon at least ten (10) days prior written notice, Illumio may audit Customer’s use of the Subscription Products, or parts thereof, to ensure that Customer is in compliance with the terms of this Agreement, and the applicable Order Form. Any such audit will be conducted during regular business hours at Customer’s facilities and will be conducted so as to not unreasonably interfere with Customer’s business activities. Customer will provide Illumio with access to the relevant Customer records and facilities. If an audit reveals that Customer has underpaid Illumio, then Illumio will invoice Customer for such underpaid fees, and Customer will pay Illumio within five (5) days of the date of such invoice. In the event of any underpayment of fees to Illumio which exceeds five percent (5%) of the fees due to Illumio, Customer will also pay for Illumio’s costs of conducting the audit. If any amount owed by Customer hereunder is thirty (30) days or more overdue, Illumio may, with seven (7) days’ prior notice to Customer, suspend Customer’s access to the Subscription Products and related data until such amounts are paid in full. This Section shall in no way limit any other Illumio’s rights or remedies.
3. Ownership. As between Illumio and Customer, Illumio owns all worldwide right, title and interest in and to the Subscription Products including all Intellectual Property Rights therein. As between Customer and Illumio, Customer owns all worldwide right, title and interest in and to all Customer Data and Illumio will not obtain any ownership rights or interests in such data. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Software as provided to Customer by Illumio. Customer will reproduce such notices on all authorized copies it makes of the Software. Customer hereby grants to Illumio a non-exclusive, irrevocable, worldwide, royalty free, perpetual, license and right to access, use, reproduce, process, analyze and store the Customer Data as is necessary to provide the Subscription Products hereunder.
4. Customer Obligations. Customer will at all times provide Illumio with good faith cooperation and assistance and make available such information and personnel as may be reasonably required by Illumio in order to provide Customer with the Subscription Products. Customer agrees to provide Illumio with feedback and comments and suggestions for improvements to the Subscription Products (collectively, “Feedback”) and that all Feedback will be the sole and exclusive property of Illumio. Customer will ensure that Authorized Users comply with the terms and conditions of this Agreement, and the applicable Order Form. Customer will promptly notify Illumio of any suspected or alleged breach of this Agreement and will cooperate with Illumio with respect to: (i) any investigation by Illumio of any suspected or alleged breach of this Agreement; or (ii) any action by Illumio to enforce the terms and conditions of this Agreement. Illumio may suspend or terminate any Authorized User’s access to the Subscription Products without prior notice to Customer in the event that Illumio reasonably determines that such Authorized User has breached this Agreement. Customer acknowledges and agrees that Customer’s use of the Subscription Products is dependent upon access to telecommunications and Internet services. Customer is solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Products, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Illumio shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. The Customer will, at all times, be responsible for all actions taken under an account of any Authorized User, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. The Customer is responsible for the security of credentials of each Authorized User, and will not share (and will instruct each Authorized User not to share), such credentials with any other person or entity or otherwise permit any other person or entity access or use the Subscription Products.
(a) Subject to Section 9, Illumio will defend, indemnify and hold Customer harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) that are awarded against Customer in a final non-appealable judgment or that are agreed to in settlement, to the extent based on a third-party claim that the Subscription Products infringe or misappropriate any U.S. patent, copyright, trade secret or other intellectual property rights of any third party.
(b) Illumio’s obligations under Section 5(a) will not apply to the extent any claim results from, or is based upon, (i) any combination, operation or use of the Subscription Products with any product, system, device, method or data not provided by Illumio, if such claim would have been avoided but for such combination, operation or use; or (ii) Customer’s or an Authorized User’s use of the Subscription Products other than in accordance with this Agreement.
(c) If Customer’s use of the Subscription Products is, or in Illumio’s opinion is likely to be, enjoined due to the type of claim specified in Section 5(a), then Illumio may at its sole option and expense: (i) replace or modify the Subscription Products to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Subscription Products under the terms of this Agreement; or (iii) if Illumio is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate Customer’s rights and Illumio’s obligation under this Agreement with respect to such Subscription Products.
(d) THE FOREGOING PROVISIONS OF THIS SECTION SET FORTH ILLUMIO’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SUBSCRIPTION SERVICES OR ANY USE THEREOF.
(e) Customer will defend, indemnify and hold Illumio harmless from and against any damages, costs and expenses (including reasonable attorneys' fees and other professional fees) that are awarded against Illumio in a final non-appealable judgment or that are agreed to in settlement of a third party claim based on or arising out of: (i) Customer’s or an Authorized User’s use of the Subscription Products (excluding claims for which Illumio is responsible under Section 5(a); or (ii) Customer’s breach of Section 4 or 7 of this Agreement.
(f) As a condition to the parties’ respective obligations under this Section 5, the party seeking indemnification (the “Indemnitee”) will: (i) promptly notify the other party (the “Indemnitor”) of the claim for which it is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; and (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnitee has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that the Indemnitee enters into without the Indemnitor’s prior written consent.
(a) “Confidential Information” means, with respect to Illumio, (i) the Subscription Products, whether in source or executable code, Documentation, non-public business information, including, without limitation, financial information, pricing, business plans, techniques, methods, processes and the results of any performance test of the Subscription Products; (ii) any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential or with words of similar meaning, and any other information the nature of which would reasonably be expected to be proprietary or confidential; and (iii) the specific terms and conditions of this Agreement. With respect to Customer, “Confidential Information” means: (y) Customer Data; and (z) the specific terms and conditions of the Agreement.
(b) The obligations and restrictions set forth in Section 6(a) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
(c) A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 6. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 6(c) will remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Illumio may retain and continue to use Customer Data in an anonymous and aggregated form for analytics and other related purposed in order to analyze use of, and improve, the Subscription Products.
(d) The provisions of this Section 6 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
7. No Warranty. THE SUBSCRIPTION PRODUCTS ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. ILLUMIO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ILLUMIO OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. ILLUMIO DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION PRODUCTS WILL BE ERROR- FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR RESULTS OBTAINED FROM THE USE OF THE SUBSCRIPTION PRODUCTS AND FOR CONCLUSIONS DRAWN FROM SUCH USE. ILLUMIO WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES CAUSED BY ERRORS OR OMISSIONS IN ANY CUSTOMER DATA OR ANY RESULTS PRODUCED BY THE SUBSCRIPTION PRODUCTS.
8. Data Protection Laws.
(a) For the purposes of the Data Protection Laws, as between Customer and Illumio, the parties agree that Customer shall at all times be the Data Controller and Illumio shall be the Data Processor with respect to the processing of Customer Data in connection with this Agreement. By entering into this Agreement, Customer agrees that Illumio may collect, retain and use certain Customer Data in connection with the Subscription Products. As the Data Controller of such Customer Data, Customer represents and warrants to Illumio that its provision of Customer Data to Illumio and instructions for processing such Customer Data in connection with the Subscription Products shall comply with all Data Protection Laws.
(b) This shall include (without limitation) ensuring that Customer: (i) has given adequate notice and made all appropriate disclosures to Data Subjects regarding Customer’s and Illumio’s use and disclosure of Customer Data, including (without limitation) for the provision of the Subscription Products; and (ii) has or obtains all necessary rights, and where applicable, all appropriate and valid consents from the Data Subjects to share such Customer Data with Illumio and to permit use of Customer Data by Illumio for the purposes of the provision of the Subscription Products and performing its obligations under the Agreement or as may be required by applicable law, including (without limitation), notifying the Data Subject of the transfer of Customer Data outside of the European Economic Area to countries whose laws they have acknowledged may provide a lower standard of data protection than exists in the European Economic Area.
(c) At the request of Customer, Illumio and Customer shall negotiate a separate data processing agreement and/or model contract clauses setting forth each party’s obligations in respect of any processing of Customer Data, which agreement and/or model contract clauses will be incorporated herein by reference once executed by the parties. Customer acknowledges that Illumio is reliant on Customer for direction as to the extent to which Illumio is entitled to use and process Customer Data. Consequently, Illumio will not be liable for any claim brought by a Data Subject to the extent that such action or omission resulted directly from Customer’s instructions. Customer undertakes to comply in all respects with any applicable laws, regulations, standards and guidelines applicable to personal data and shall use all reasonable endeavors to where possible anonymize personal data sent to Illumio. In accordance with applicable Data Protection Laws, Illumio shall take all commercially reasonable measures to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. Illumio will provide Customer with its security policy, upon request, that sets forth the technical specifications and the measures taken to protect the security and confidentiality of Customer Data.
(d) Customer may, upon at least thirty (30) days prior written notice, and no more than once per 12 month period, appoint an independent third party auditor to physically inspect, at Customer’s sole cost and expense, any facilities owned or controlled by Illumio in which Customer Data is processed or stored, provided that such inspection: (i) shall occur on a mutually agreed upon date during Illumio’s regular business hours; (ii) does not interfere with any of Illumio’s business operations; and (iii) does not, in Illumio’s discretion, create any risk to the confidentiality, integrity or availability of any data processed or stored by Illumio. In addition, prior to any such inspection audit, such appointed third party auditor must sign and deliver to Illumio a nondisclosure agreement, which agreement shall contain restrictions on use and disclosure of Confidential Information that are at least as protective as those set forth in Section 7 hereof, and which otherwise shall be in form and substance acceptable to Illumio.
9. Limitations of Liability. IN NO EVENT WILL ILLUMIO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SUBSCRIPTION PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ILLUMIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ILLUMIO’S TOTAL AGGREGATE LIABILITY ARISING UNDER THE AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO ILLUMIO BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO ANY LIABILITY. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT ILLUMIO HAS SET ITS PRICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN ILLUMIO AND CUSTOMER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10. Term and Termination.
(a) Subject to the Customer’s compliance with the terms and conditions of the Master Subscription Agreement, the Master Subscription Agreement will be in effect for as long as the Customer is licensed to use any Subscription Product pursuant to an Order Form (the “Term”). The subscription term for the use of each Subscription Product will be set forth in the applicable Order Form for such Subscription Product (each, a “Subscription Term”). Each party will have the right to terminate the Master Subscription Agreement if the other party breaches any material term of the Master Subscription Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Each party will have the right to terminate an individual Order Form if the other party breaches any material term of such Order Form and fails to cure such breach within thirty (30) days after written notice thereof. For the avoidance of doubt, termination of an Order Form shall not affect the Subscription Term of any other Order Form applicable to other Subscription Products that the Customer has purchased.
(b) Upon any termination or expiration of the Master Subscription Agreement, all licenses granted to the Customer in the Master Subscription Agreement and in all Order Forms will terminate immediately and: (i) the Customer will (A) immediately cease use of the Subscription Products, and (B) promptly return to Illumio the Software and Documentation and all copies and portions thereof, in all forms and types of media; (ii) each party will promptly destroy or return to the other party all Confidential Information of the other party in its possession or control (although notwithstanding the foregoing, Illumio may, at its option, retain, destroy or otherwise dispose of any the Customer Data in its possession); (iii) the Customer will provide Illumio with an officer’s written certification, certifying to the Customer’s compliance with the foregoing; and (iv) the payment dates of all amounts payable to Illumio will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously. For clarification, upon termination of any Order Form before end of the Subscription Term: (x) Illumio will have no obligation to refund any Fees or other amounts received from the Customer during the Subscription Term; and (y) the Customer shall remain obligated to pay all Fees payable under such Order Form for the full Subscription Term.
(c) The rights and obligations of Illumio and the Customer contained in Sections 2, 3, 4, 5, 6, 8, 9, 10, and 12 will survive the expiration or termination of the Agreement.
(a) The Software and Documentation are “commercial items” (FAR 2.101), consisting of “commercial computer software” and “commercial computer software documentation” (FAR 12.212 and DFARS 227.7202). If the Software and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software and Documentation will be only those specified in this Agreement.
(b) This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
(c) Customer may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Illumio’s prior written consent, and any attempt by Customer to do so, without such consent, will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns. Illumio may freely assign this Agreement.
(d) Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(e) All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Order Form or to such other address as may be specified by either party to the other in accordance with this Section.
(f) The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.
(g) Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action.
(h) If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
(i) Customer agrees to comply fully with all relevant export laws and regulations, including those of the United States (“Export Laws”), to ensure that neither the Software or Documentation, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
(j) This Agreement (including all Order Forms and all schedules and exhibits attached thereto) is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter.
(k) In the event of a conflict between the terms and conditions of this Agreement and any Order Form, this Agreement shall control unless otherwise expressly set forth in the applicable Order Form.
(l) The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12. Definitions. Capitalized terms not defined herein shall have the meaning set forth below:
(a) “Authorized Users” means any individual who has been authorized in accordance with the terms of this Agreement to access and use the Subscription Products.
(b) “Customer Data” means any and all data used by Customer or Customer’s Authorized Users in connection with the Subscription Products, which may include, without limitation, names, mobile telephone numbers, IP addresses and email addresses of Authorized Users.
(c) “Data Controller” as defined in the Data Protection Laws.
(d) “Data Processor” as defined in the Data Protection Laws.
(e) “Data Protection Laws” means the General Data Protection Regulation (Regulation (EU) 2016/679).
(f) “Data Subject” as defined in the Data Protection Laws.
(g) “Documentation” means the standard user documentation that Illumio delivers to Customer with the Subscription Products.
(h) “Error” refers to any material error or defect in the Subscription Products that causes the Subscription Products not to substantially conform in all material respects with its Documentation.
(i) “Error Corrections” means patches and bug fixes developed by Illumio for Errors.
(j) “Intellectual Property Rights” means patent rights (including without limitation patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
(k) “Licensed Configuration” means the permitted type and quantity of nodes, clusters, memory, equipment and locations, as applicable, for the use of Subscription Products, as specified in an Order Form.
(l) “Maintenance and Support Services” means the maintenance and support provided by Illumio and paid for by Customer under the Agreement, in accordance with the Supplemental Terms for Maintenance and Support Services.
(m) “Order Form” means a written order form executed by the parties and referencing this Agreement by which Customer orders Software or Services.
(n) “Services” means Illumio’s cloud-based security platform services as specified in the applicable Order Form.
(o) “Reseller” means any independent value added reseller authorized by Illumio, which obtains a license to the Subscription Software from Illumio.
(p) “Software” means the software specified in the applicable Order Form, in executable code form, including any Error Corrections and Updates provided by Illumio to Customer under this Agreement. “Software” also includes Documentation.
(q) “Subscription Products” means the Software and/or the Services for which Customer receives rights from Illumio pursuant to an Order Form.
(r) “Update” means Error Corrections, minor enhancements and extensions or other changes to the Subscription Products that are generally made available by Illumio at no additional cost to Customers. “Updates” do not include Upgrades.
(s) “Upgrade” means a major enhancement to or new versions of the Subscription Product that provides substantially new, enhanced or different features, functions or performance.
The following supplemental terms (the “Supplemental Terms”) will apply to and govern the Customer’s use of the Subscription Products. Capitalized terms not defined herein will have the meaning set forth in the Master Terms.
To the extent set forth in the applicable Order Form and subject to the Customer's compliance with the terms and conditions of the Agreement and these Supplemental Terms (including, without limitation, payment of the applicable Fees), Illumio grants to the Customer a nonexclusive, revocable, limited, non-transferable, non-assignable, non-sublicensable, license during the applicable Subscription Term set forth in the applicable Order Form to install and use the Software in the Licensed Configuration set forth in the applicable Order Form solely on servers and equipment owned or controlled by the Customer solely for the Customer's own business purposes and not for any other purpose.
The Customer has no right to and will not transfer, sublicense or otherwise distribute the Software to any third party. Except as expressly authorized in these Supplemental Terms, the Customer will not copy the Software, in whole or in part. The Customer will not modify or lease, lend or rent the Software, make the Software available on a service bureau, time sharing, rental, application services provider, hosting or other computer services basis to third parties, or otherwise make the functionality of the Software available to third parties.
The Customer acknowledges that the Software constitutes and contains trade secrets of Illumio and its licensors and, in order to protect such trade secrets and other interests that Illumio and its licensors may have in the Software, the Customer agrees not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so. The Customer's rights in the Software are limited to those expressly granted herein. Illumio reserves all rights and licenses in and to the Software not expressly granted to the Customer under these Supplemental Terms.
For the purpose of implementing the Software on the Customer’s servers, Illumio may require access to the Customer’s servers and systems where the Software is to be installed, and the Customer will grant access to Illumio for such limited purpose. Upon completion of the implementation, the Customer will be responsible for removing all credentials granted to Illumio in connection with such implementation.
Customer will not interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer will not: (i) copy, modify or reverse engineer the Services; or (ii) rent, lease, sell, resell or otherwise provide access to the Services on a time-share or service bureau basis. Customer may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes. In addition, Customer agrees that Customer is not permitted to publish, or use, for non-internal purposes, any reports that are generated either by, or for, Customer through use of the Services, without the express written permission of Illumio.
Illumio will follow its standard archival procedures for Customer Data. In the event of any loss or corruption of Customer Data, Illumio will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Illumio. Illumio will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. Illumio’s efforts to restore lost or corrupted Customer Data pursuant to this Section will constitute Illumio’s sole liability and customer’s sole and exclusive remedy in the event of any loss or corruption of customer data in connection with the Services.
Illumio may access Customer’s account, system, content and Customer Data as necessary to identify or resolve technical issues or respond to complaints about the Services. Illumio shall also have the right, but not the obligation, to monitor the Services to determine Customer’s compliance with the Agreement. Illumio shall have the right to remove any Customer Data, material, content or other data submitted by Customer that Illumio finds, in its sole discretion, to be in violations of any provision of the Agreement, provided Illumio has provided Customer with two-day notice of such.
Customer will provide Customer Data to Illumio in such format and by such method as agreed to by the parties in the Order Form. Customer acknowledges and agrees that Customer and Customer’s Authorized Users’ use of the Services are conditioned upon Customer’s provision of Customer Data to Illumio in accordance with the foregoing.
During the Subscription Term and to the extent set forth in the applicable Order Form, the Customer will receive 24/7 support for all maintenance, releases, and Updates via its support website, email and telephone.
The Customer should reach out to technical support for assistance in identifying and verifying the causes of suspected Errors in the Subscription Product and for existing workarounds for identified Errors. Illumio will work directly with a Customer's designated internal support liaisons. It is the Customer's responsibility to ensure that these individuals are properly trained to use the Subscription Product. In order for Illumio to effectively resolve any issues, the Customer will provide reasonable access to all necessary personnel to answer relevant questions.
On request, the Customer will provide access for online diagnostics of the Subscription Product during Error diagnosis. The Customer will promptly implement all Updates and Error Corrections provided by Illumio to resolve an Error.
Illumio’s support obligation with respect to any Subscription Product is limited to the current and prior production release for such Product.
Illumio will notify the Customer of maintenance releases and Updates as they are made available. This is done at no additional charge to Customers. Illumio has the sole discretion for the timing and availability of any and all maintenance releases and Updates. Updates may be made available for the Software by downloading from the Illumio support website.
Illumio will use reasonable efforts to correct any reproducible programming Error in the Subscription Product attributable to Illumio with a level of effort commensurate with the severity of the Error.
Illumio Response Time
|P1||Catastrophic problem; systems down and impacting ability to operate||30 minutes|
|P2||High impact problem; systems disrupting business operations||1 hour|
|P3||Medium to low impact problem; loss of non-critical functionality||4 business hours|
|P4||General usage issues; information requests||1 business day|
The Customer will notify Illumio of such Errors and will provide Illumio with enough information to reproduce the Error(s). Illumio is only responsible for Errors that it can reproduce on unmodified Subscription Product as delivered to the Customer.
Illumio’s online support portal provides access to releases, Documentation, knowledge base articles, trouble-shooting reports and other additional information.
Illumio will notify all customers who register, of maintenance releases and updates as they become available. Each update includes release notes, highlighting any new features, fixes and known issues. It is recommended you download and install the latest update for your environment.