By accepting this EULA through the [Illumio Product Portal] or accessing the Products described below you accept the terms and conditions herein (the “Agreement”) as of the date of first access (the “Effective Date”), and confirm that you have read, understand, and intend to be bound as if you had signed the same in writing. If you are acting on behalf of a company or other legal entity, you represent and warrant that you have the authority to accept and agree to these terms and conditions for such company or other legal entity. If you do not have such authority, or if you do not accept the offer indicating your acceptance of these terms and conditions, you may not access the products, solutions and/or demonstration environments, or any related Illumio software, systems, platforms, or networks (collectively, the “Products”). This Agreement is between the entity or individual entering into this agreement (“User”) and Illumio, Inc., a Delaware corporation (“Illumio”).
1. License; Term and Termination. Illumio grants User a non-exclusive, non-transferable, license to access and use the Products from the Effective Date until terminated by you or Illumio (the “Term”). In an initial beta version of the Product (the “Beta Product”), this Agreement will govern; provided, however, that the terms and conditions pertaining to support and maintenance will not apply unless and until Illumio converts User to the general availability version of the Product (the “General Availability Product”). Upon any termination or expiration of this Agreement for any reason, all licenses granted to User in this Agreement and in all Orders will terminate immediately and: (i) User will immediately cease use of the Products and promptly return to Illumio the Confidential Information and Documentation and all copies and portions thereof, in all forms and types of media; and (ii) User will provide Illumio with an officer’s written certification, certifying to User’s compliance with the foregoing.
2. Transition from Beta to General Availability. For the avoidance of doubt, User’s use of the Beta Product does not obligate Illumio to progress to the General Availability Product and will only do so in Illumio’s sole discretion. Illumio will not be required to preserve User’s environment, data or configurations when moving from the Beta Product to the General Availability Product. Illumio may in its sole discretion, but will not be obligated to, implement mitigations for any of the items flagged for improvement or correction during the applicable period of the Beta Product; and Illumio will not be obligated to fix any bugs found in the Beta Product nor will be committed to develop any feature or functionality requests receive from User. After the conclusion of the applicable period of the Beta Product, User must comply with an Illumio direction to decommission and delete the Beta Product instances within ten (10) days.
3. Proprietary Rights; Confidentiality. You acknowledge and agree that the engagement contemplated hereunder and all related business and technical details reasonably understood to be confidential are “Confidential Information”, and that the Software is a proprietary product of Illumio, protected under intellectual property rights (including without limitation copyrights, patents, trade secrets, trademarks, etc.) and international treaties. You further acknowledge and agree that all right, title and interest in and to the Software and any derivatives thereof are and shall remain with Illumio. All revisions, corrections, modifications, enhancements, updates or upgrades to the Software are and shall be owned solely by Illumio.
4. Open Source. Notwithstanding anything herein to the contrary, Open Source Software (as defined below) is licensed to you under the license terms for such Open Source Software. The Open Source Software license terms are consistent with the License granted in this Agreement, and may contain additional rights benefiting you. The Open Source Software license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on you than the applicable Open Source Software license terms. To the extent the license for any Open Source Software requires Illumio to make available to you the corresponding source code and/or modifications (the “Source Files”), you may obtain a copy of the applicable Source Files by sending a written request, with your name and address to: Illumio, Inc., 920 De Guigne Avenue, Sunnyvale, California, United States of America. All requests should clearly specify: Open Source Files Request, Attention: Legal Department. This offer to obtain a copy of the Source Files is valid for three years from the date you acquired this Software. “Open Source Software” means software components embedded in the Software and provided under separate license terms, which can be found in Illumio’s Open Source Software disclosure file (or similar file).
5. Compliance; Privacy. The Software may be subject to United States export control regulations. Without prior authorization from the United States government, you shall not use the Software for, and shall not permit the Software to be used for, any purposes prohibited by United States law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. Without limiting the foregoing, You represent and warrant that neither you nor your End Clients are or are acting on behalf of: (a) any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (b) any person located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (c) acting on behalf of any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List, Unverified List, or Entity List or any other U.S. Government list of prohibited or restricted parties unless authorized by license or regulation. To the extent applicable to a User with data subjects located in the European Economic Area, Illumio’s privacy supplemental terms are incorporated herein and will apply with respect to personal data processed in the Products: https://www.illumio.com/eula#privacy
6. Warranty; Support. To the maximum extent permitted by applicable law, the Beta Product is provided “as is” and “as available”, with all faults and without warranty of any kind. To the maximum extent permitted by applicable law, Illumio warrants the General Availability Product (the “Warranty”) for the first ninety (90) days of the initial Order term, the Products purchased by User in such Order and deployed by User in its production environment according to the licensed configuration will materially conform to the applicable Product documentation. In the event User experiences a non-conformity, User will submit a support request pursuant to the Maintenance and Support Services Supplemental Terms under Exhibit A; and if the non-conformity is not remediated according to the terms thereunder, then User may submit a claim through the support portal referencing this Warranty (a “Warranty Claim”). In the event such non-conformity persists without relief for more than sixty (60) days after Illumio’s receipt of a Warranty Claim, then User may terminate the affected Products and Illumio will provide User a pro-rata refund of any prepaid subscription fees for the remainder of the subscription term after the effective date of termination. This warranty will not apply to any non-conformity due to a modification or defect in a Product that is caused by any person other than Illumio or under Illumio’s direction. This Section 5 provides User’s sole and exclusive rights and remedies, and Illumio’s sole and exclusive liability, in connection with the Warranty. Illumio hereby disclaims all warranties and conditions with respect to the software, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third-party rights. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
7. Exclusion of Damages; Limitation of Liability. Under no circumstances will either party be liable to you for any indirect, incidental, consequential, special or exemplary damages, for loss of profits, use, revenue, or data or for business interruption (regardless of the legal theory for seeking such damages or other liability) arising out of or in connection with use of the software, whether or not the applicable party has been advised of the possibility of such damages. In addition, the liability of either party arising out of or relating to the software will not exceed the amount paid to Illumio by User in the twelve (12) month period preceding the claim or action giving rise to any liability. With respect to a purchase of the General Availability Product (and excluding User’s purchase or use of the Beta Product), the exclusion of damages and limitation of liability in this Section 6 shall not apply to: (a) a party’s breach of a party’s confidentiality obligations under Section 2 (Confidentiality); or (c) infringement by a party of the other party’s intellectual property rights.
8. General. This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of its conflict of laws rules, with jurisdiction and venue in the federal and state courts located in Santa Clara County, California. This Agreement constitutes the entire agreement between Illumio and you with respect to its subject matter and may not be modified except by a written instrument executed by you and an authorized representative of Illumio.
Supplemental Terms – Maintenance and Support Services, Beta
Use of the Beta Product is not covered by standard Illumio Maintenance and Support Services, including without limitation response times. During the Beta Product period, support will be provided on a limited basis as follows: