Continental Innovates with Rancher and Kubernetes
This Rancher Enterprise Agreement (“Agreement”) is between you (“Customer”) and your Affiliates and Rancher Labs, Inc. (“Rancher”) and its Affiliates (each a “Party” and together the “Parties”) and governs Customer’s relationship with Rancher for the provision of Rancher Products and Services. Customer desires to purchase certain Products or Services from Rancher;
NOW THEREFORE, the Parties enter into this Agreement for the provision of Products or Services to Customer.
1.1. Affiliate means any person or entity directly or indirectly controlling, controlled by or under common control with a Party as of or after the Effective Date, for so long as that relationship is in effect (including affiliates subsequently established by acquisition, merger or otherwise).
1.2. Customer Information means any data, information, software or other materials that Customer provides to Rancher under the Agreement.
1.3. Controlled Materials mean software or technical information that is subject to the United States Export Administration Regulation.
1.4. Effective Date means the effective date of this Agreement found above.
1.5. Fees are the amounts to be paid by Customer to Rancher for the Rancher Products or Services.
1.6. Order Form means Rancher’s standard ordering document or online form used to order Rancher Products or Services.
1.7. Product(s) or Rancher Product(s) means Rancher Software.
1.8. Rancher Personnel means Rancher employees as well as individuals employed through co-employment services from professional employment organizations (“PEO’s) and the like.
1.9. Rancher Professional Services means the delivery of specialized, project-based activities rendered by Rancher Personnel.
1.10. Rancher Training Services are Rancher’s training courses delivered onsite or remotely as the Parties agree in an applicable Order Form.
1.11. Rancher Support Services means the delivery of problem resolution and customer support activities by Rancher Personnel or contractors subject to the Rancher Support Terms of Service.
1.12.Rancher Software means Rancher branded software governed by this Agreement and the Rancher End User License Agreement attached hereto.
1.13. Service(s) means Rancher Professional Services, Training Services, and Support Services.
1.14. Statement of Work (“SOW”) means the documentation of an order for Rancher Professional Services consisting of a description of the services to be performed and other associated information such as the term of these services.
1.15. Support Subscription Term means the period during which Customer is entitled by to use, receive, access or consume Rancher Support Services pursuant to an Order Form.
1.16. Supplier means a third party that provides service(s) to Rancher in order for Rancher to offer Products or Services to its customers and/or business partners.
1.17. Taxes means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any Rancher Products, other than taxes based on the net income of Rancher.
Agreement Term. The Agreement begins on the Effective Date and continues until it is terminated as set forth below. For Services requiring a Statement of Work the term will be set forth on the applicable Statement of Work.
Support Subscription Term. Any Support Service that Customer orders will start on the specified Service subscription start date as identified in the applicable Order Form and end at the expiration of the Support Subscription Term as defined in the applicable Order Form unless sooner terminated according to this Agreement. Support Subscriptions automatically renew for successive twelve (12) month terms unless either party gives written notice to the other party of its intention not to renew. Notice of non-renewal must be given at least sixty (60) days before the expiration of the applicable Subscription Term.
Termination for Cause. Either party may terminate this Agreement (in whole or with respect to any Order Form or SOW) by notice to the other party if (a) the other party materially breaches this Agreement, and does not cure the breach within thirty (30) days after written notice (except in the case of a breach of Section 5 (Representations and Warranties) in which case no cure period will apply), or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, Rancher may, at its option and without limiting its other remedies, suspend (rather than terminate) any Product or Service if Customer breaches the Agreement (including with respect to payment of Fees) until the breach is remedied.
Effect of Termination Survival. The termination or suspension of an individual Order Form or SOW will not terminate or suspend any other Order Form or SOW, or the remainder of the Agreement unless specified in the notice of termination or suspension. If the Agreement is terminated in whole, all outstanding Order Form(s) and SOWs will terminate. If this Agreement or any Order Form or SOW is terminated, Customer agrees to pay for all items specified in the applicable Order Form that Customer used or deployed or that were provided by Rancher up to the date of termination and that Rancher will not issue any refunds for any Fees paid. Except in the case of termination for Rancher’s breach, Customer shall remain liable for all Fees stated in the applicable Order Form. Sections 2, 3, 4, 5, 6, 7, and 8-10 will survive the termination of this Agreement.
Payment of Fees. All undisputed invoices shall be paid within 30 days of the date of invoice. If an invoice is disputed, Customer will provide Rancher with written notice describing the basis for the dispute prior to the due date. Customer must pay the Fees without withholding or deduction in U.S. Dollars. All Fees and other amounts paid under the Agreement are non-refundable.
Fees. Fees are associated with the applicable Rancher Product or Service and shall be delineated in the applicable Order Form. In the case of Support Services, if during the term of the Agreement, the actual quantity of servers and nodes that the Customer deploys and for which the Customer is utilizing Support Services exceeds the quantity identified in the applicable Order Form, Customer must promptly report to Rancher the number of additional servers and nodes deployed and the date(s) on which these Products were deployed. Rancher will invoice Customer and Customer agrees to pay for the additional Services in accordance with this section 4. If purchasing support for Rancher’s Longhorn product, a support subscription must also be maintained during the same subscription period for an equal number of Rancher nodes.
Taxes. The Fees set forth in any Order Form are exclusive of, and Customer is liable for and will pay, all taxes, including any value added tax and goods and services tax or any similar tax imposed on or measured by this Agreement. If Customer is required to withhold or deduct any Taxes from the Fees, then Customer agrees to increase the amount payable to Rancher by the amount of such Taxes so that Rancher receives the full amount of all Fees. Each Party is responsible for its own withholding taxes, employment taxes and other amounts required to be withheld or paid in connection with its personnel.
Rancher represents and warrants that (a) it has the authority to enter into this Agreement, (b) the Services will be performed in a professional and workmanlike manner by qualified Rancher Personnel, © to its knowledge, the Rancher Software does not, at the time of delivery to Customer, include malicious mechanisms or code for the purpose of damaging or corrupting the Rancher Software, and (d) that Rancher will comply with applicable US laws governing its performance under this Agreement. Customer represents and warrants that (a) it has the authority to enter into this Agreement, and (b) its use of Products or Services will comply with all applicable laws, and it will not use the Products or Services for any illegal activity.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE RANCHER PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, AND RANCHER DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE. RANCHER AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE RANCHER PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS, OR THAT RANCHER WILL CORRECT ALL ERRORS. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN SECTION 5.1, CLIENT’S EXCLUSIVE REMEDY, AND RANCHER’S ENTIRE LIABILITY, WILL BE THE RE-PERFORMANCE, OR REDELIVERY OF THE DEFICIENT RANCHER PRODUCT OR SERVICE, OR IF RANCHER CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT RANCHER PRODUCT OR SERVICE, IN WHICH CASE CLIENT MAY RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT RANCHER PRODUCT OR SERVICE AS OF THE EFFECTIVE DATE OF TERMINATION.
The Products and Services have not been tested in all situations under which they may be used. Rancher will not be liable for the results obtained through use of the Products or Services and Customer is solely responsible for determining appropriate uses for the Rancher Products and Services and for all results of such use. For example, Rancher Products and Services are not specifically designed, manufactured or intended for use in (a) the design, planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft control, navigation, or communication systems © weapons systems, (d) direct life support systems (e) or other similar hazardous environments.
Definition. For purposes of this Agreement, “Confidential Information” means written, documentary, oral or visual information of any kind disclosed by either Party to the other, including, but not limited to: (i) the terms and conditions of this Agreement; (ii) any Order Form; (iii) source code, libraries, build procedures, utilities, lifecycle artifacts, any and all written or digital intellectual property, computer programs, documentation, training materials and techniques and (iv) information of a business, planning, marketing or technical nature, including, financial data, plans, specifications, forecasts, market intelligence, concepts, fixed assets, customer and/or employee information, strategies, agreements or other proprietary or confidential material which the disclosing party may, at its sole discretion, disclose to the receiving party; (v) models, tools, processes and procedures, and software; and (vi) any documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving party that contain, summarize or are based upon any Confidential Information. Information disclosed orally shall be considered Confidential Information if a reasonable person at the time of disclosure would consider such information to be confidential.
Exclusions. Information shall not be considered Confidential Information if: (a) the information is or becomes publicly available other than as a result of the Recipient’s, or its agent’s breach of this Agreement, (b) the Recipient, at the time of disclosure, knows or possesses the information without obligation of confidentiality or thereafter obtains the information from a third party not under an obligation of confidentiality; © the Recipient independently develops the information without use of the Discloser’s Confidential Information, (d) is independently developed by Rancher employees without reliance or reference to Confidential Information, or (e) the information is licensed under an Open Source License (as defined by the Open Source Initiative (https://opensource.org/).
Restrictions. “Recipient” is the party receiving Confidential Information under this Agreement. “Discloser” is a party disclosing Confidential Information under this Agreement. Recipient (a) may not disclose Confidential Information of a Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 6; (b) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and © may disclose Confidential Information of the Discloser only to its employees, personnel, Affiliates, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation (or other professional obligation) to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 6. These obligations will survive this Agreement and continue until the Confidential Information lawfully becomes known to the public, as defined in Paragraph 6.2.
Disclosures Required by Law. The receiving Party may disclose the Confidential Information of the other to the extent required under order of a court of competent jurisdiction, a valid administrative or congressional subpoena, law, rule, regulation (including any securities exchange regulation), or other governmental action provided that the receiving Party (i) promptly notifies the disclosing Party in writing prior to disclosure of the information, and (ii) assists the disclosing Party, at the disclosing party’s expense, in any attempt by the disclosing Party to limit or prevent the disclosure of the Confidential Information.
Remedies Upon Breach. Each Party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Section 6 and, accordingly, that either party may be entitled (in addition to any legal or equitable remedies available to such party) to injunctive or other equitable relief to prevent or remedy such breach.
Return or Destruction. Confidential Information that is disclosed prior to termination of this Agreement will remain subject to this Agreement for the period set forth above. Upon written request of the Discloser, the Recipient will promptly return or destroy all Confidential Information, except for Confidential Information stored in routine back-up media not easily accessible during the ordinary course of business.
Personal Data. Receiving Rancher Support Services does not require the Customer to provide any Personal Data to Rancher. The Parties agree that, except for Personal Data contained in the Agreement, or necessary to provision the Support Services, Customer agrees it will not transmit to Rancher any Personal Data from the Customer, Customer’s employees, agents, contractors, customers, or affiliates. For purposes of this paragraph Personal Data means: any information relating to an identified or identifiable natural person, including, but not limited to: any information that is clearly about a particular person and can be used to identify such person, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. If Customer inadvertently transmits to Rancher any Personal Data the Parties agree: (i) Rancher will destroy such Personal Data, (ii) Customer will indemnify and hold Rancher harmless from any third-party claim brought against Rancher or its Affiliates arising out of Customer’s transmittal to Rancher of Personal Data.
Use of Product or Services Information. If Customer provides Rancher information in connection with Customer’s use of or access to the Products or Services, Customer agrees that, subject to Section 6, Rancher and its Affiliates may use such Customer use of Product or Service information in connection with providing the Products or Services. Customer agrees that its provision (and Rancher’s use) of this information under this Agreement does not require any additional consents or licenses, will be in compliance with applicable law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. As between Rancher and Customer, Customer retains all other rights in and to this information. Rancher grants to Customer only those rights expressly granted in the Agreement with respect to the Products and Services and reserves all other rights in and to the Products and Services (including all intellectual property rights). Rancher may collect and use for any purpose aggregated anonymous benchmark data about Customer’s use of the Products or Services. Nothing in this Agreement will limit Rancher from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to Customer. The terms of Section 6 will not prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.
Feedback. If Customer chooses to voluntarily provide any Feedback to Rancher regarding Rancher Products or Services, Rancher may use such Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve Rancher Products and other Rancher offerings without attribution or compensation. Customer grants Rancher a perpetual and irrevocable license to use all Feedback for any purpose. Customer agrees to provide Feedback to Rancher only in compliance with applicable laws and Customer represents that it has the authority to provide the Feedback and that Feedback will not include proprietary information of a third party. Rancher acknowledges and agrees that any feedback provided by the client under this agreement is on an “as is” basis, without any warranty of any kind.
Audit. While this Agreement is in effect and for one year thereafter, Rancher or its designee, acting in accordance with Section 6, may inspect Customer’s facilities and records to verify its compliance with this Agreement. Customer agrees to (a) respond promptly to requests for information, documents and/or records, (b) grant appropriate access for on-site visits in order to verify its compliance, and © reasonably cooperate in connection with any such verification. Rancher will provide written notice at least thirty (30) days prior to any on-site visits and will conduct onsite visits during regular business hours in a manner that reasonably minimizes interference with Customer’s business. Rancher may, in its sole discretion require Customer to enable functionality within Rancher Products whereby the Rancher Products electronically deliver the number of Rancher Products in use by Customer to Rancher. If Rancher notifies Customer of any noncompliance (whether derived from an on-site audit or electronically) and/or delivers an invoice for the amount of underpayment, then Customer will resolve the non-compliance and make payment within thirty (30) days from the date of notice. If the underpayment exceeds twenty thousand dollars ($20,000), then Customer will also reimburse Rancher for the reasonable cost of the inspection.
DISCLAIMER OF DAMAGES. EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S AND ITS AFFILIATES’ TOTAL AND AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL EXCEED THE FEES RECEIVED BY RANCHER WITH RESPECT TO THE PARTICULAR RANCHER PRODUCT OR SERVICE GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. THESE LIMITATIONS DO NOT LIMIT CLAIMS OF BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OF A PARTY OR ITS AFFILIATES.
Governing Law and Claims. The Agreement, and any claim, controversy or dispute related to the Agreement, will be resolved by the Amsterdam District Court following proceedings in English under the Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (Netherlands Commercial Court) and the Amsterdam Court of Appeal (Netherlands Commercial Court of Appeal) and each party irrevocably submits to the exclusive jurisdiction and venue of those courts. Application for provisional measures, including protective measures, available under Dutch law may be made to the Netherlands Commercial Court’s Preliminary Relief Judge in proceedings in English in accordance with the Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (Netherlands Commercial Court) and the Amsterdam Court of Appeal (Netherlands Commercial Court of Appeal). To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration of all Support Subscriptions or Work Orders, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Export. Rancher may supply Customer with Controlled Materials. Customer agrees to comply with all applicable export and import laws or regulations, including any local laws in Customer’s jurisdiction concerning Customer’s right to import, export or use Controlled Materials and agree that Rancher is not responsible for Customer’s compliance. Without limiting the foregoing, Customer agrees that it will not export, disclose, re-export or transfer the Controlled Materials, directly or indirectly, to: (a) any U.S. embargoed destination; (b) any party who Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, unmanned air vehicle systems, or any other restricted end-use; or © anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Customer will not provide to Rancher any data or engage Rancher in any activity, in each case, that could constitute the development of a “defense article” or provision of a “defense service” to Customer, as these terms are defined in Section 120 of the International Traffic in Arms Regulations (ITAR). In addition, Customer will not, and will not allow third parties under Customer’s control, (i) to provide Rancher with Customer Information that requires an export license under applicable export control laws or (ii) to process or store any Customer Information that is subject to the ITAR. If Customer breaches (or Rancher believes Customer has breached) this paragraph or the export provisions of an end user license agreement for any software or Rancher is prohibited by law or otherwise restricted from providing Products or Services to Customer, Rancher may terminate this Agreement and/or the applicable Order Form. Customer acknowledges that to provide the Products and Services, it may be necessary for Customer Information to be transferred between Rancher, its Affiliates, vendors and/or subcontractors, which may be located worldwide.
Notices. Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the address(es) or email address provided by Customer, including through an automated receipt or by electronic log. Any notice from Customer to Rancher must include a copy sent to: Rancher Labs, Inc., Attention: Legal Department, 19409 Stevens Creek Blvd #260, Cupertino, CA 95014; Email: firstname.lastname@example.org. Billing notices to Customer will be addressed to the billing contact designated by Customer.
Assignment. Either party may upon written notice: (a) assign this Agreement to an Affiliate if the Affiliate’s financial condition and creditworthiness are sufficient to satisfy the assigning party’s obligations under the Agreement and the assignment will not affect the non-assigning party’s obligations under the Agreement; and (b) assign this Agreement to a successor or acquirer pursuant to a merger or sale of all or substantially all of such party’s assets. Any other assignment will be deemed void and ineffective without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
Waiver. A waiver by a party under this Agreement is only valid if in writing and signed by an authorized representative of such party. A delay or failure of a party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights.
Independent Contractors. The parties are independent contractors and nothing in this Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel and contractors. For the purposes of this Agreement, Rancher Personnel shall not be considered subcontractors. Rancher may subcontract Services to third parties and Affiliates as long as (a) they agree to protect Confidential Information and (b) Rancher remains responsible to Customer for performance of its obligations.
Third Party Beneficiaries. This Agreement is binding on the parties to this Agreement and, other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit or remedy.
Force Majeure. Neither party is responsible for nonperformance or delay in performance of its obligations (other than payment of Fees) due to causes beyond its reasonable control. If the period of non-performance of one party exceeds 30 calendar days from receipt of notice of the force majeure event, the other party may, by giving written notice, terminate this Agreement.
Complete Agreement and Order of Precedence. The Agreement represents the complete agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter, including any prior confidentiality agreements entered into by the parties. Any terms contained in any other documentation that Customer delivers to Rancher, including any purchase order or other order-related document (other than an Order Form), are void and will not become part of the Agreement or otherwise bind the parties. If there is a conflict between the Agreement, any Exhibit, a SOW, and/or an Order Form, the terms of the Agreement will control unless otherwise expressly provided in the Exhibit, SOW or Order Form.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to the Agreement.
Severable. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in effect to the greatest extent permitted by law.
Publicity. Rancher shall be entitled to release general publicity (the “Publicity”), including the use of the Customer name, logo or other information into the public domain regarding the Services and Company’s relationship with Customer without the prior written approval of the Customer. The nature of the Publicity will include, but not be limited to: news releases, articles, brochures, advertisements (including advertisements or notices on the Company web site), prepared speeches, and the like to be made by the Company or any of its sub-contractors concerning this agreement or the service(s) performed or to be performed under this Agreement.
United States Government End Users. The Software and its documentation are “Commercial items,” “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Software and its documentation subject to the terms of this Agreement.
Limitations. This Professional Services Addendum will only apply where Customer is purchasing Rancher Professional Services.
Performance of Services. Except as described below, Rancher will provide Customer with Professional Services (the “Services”) as specifically set forth in Statements of Work agreed to in writing and signed by the parties (each, a “Statement of Work” or “SOW”). This addendum is incorporated by reference into the Rancher Enterprise Agreement (together the “Agreement”). Upon the execution of a Statement of Work by the parties, it shall automatically be deemed part of the Agreement.
If an SOW is not specifically agreed and signed by the Parties, the following shall govern with respect to performance of Services: a) the consultant will operate at the general direction of the Customer, providing the following types of services; advice, knowledge transfer, architecture, documentation, and hands on assistance with the implementation of Rancher’s products (including but not limited to: Rancher, RKE, K3s, and Longhorn) and related open source solutions, b) the assigned consultant will work with Customer to monitor goals and efforts on a weekly basis, c) at the direction of the Customer, the assigned consultant may assist in the coordination of Customer’s Rancher and Kubernetes environments.
Professional Services Statement of Work Changes. If the Customer desires to modify the Services performed under any Statement of Work for a Professional Services engagement, Customer shall provide written notice thereof to Rancher, which notice shall include a description of the requested modification to the Services. Promptly following Rancher’s receipt of Customer’s written notice, Rancher shall submit a written change order proposal to Customer. Such change order proposal shall include an estimate of additional charges for the modified Services, if any, any expected impact the change will have on the scheduled date(s) for delivery or completion of such Services, and any other information necessary for a complete description of the desired changes. On Customer’s written approval of the change order proposal, the Change Order proposal will become a part of the relevant Statement of Work. No change to any Statement of Work shall be binding on the parties unless the change is embodied in a writing that has been signed by an authorized representative of each party.
Rancher Personnel. The Rancher personnel (“Rancher Personnel”) assigned to perform the Services shall have appropriate technical and professional skills to enable them to perform their duties in a professional manner, consistent with generally accepted industry standards. Customer will promptly notify Rancher of any Rancher Personnel that Customer believes are performing in an unsatisfactory manner. Rancher shall cooperate with Customer in removing any Rancher Personnel who perform the Services in an unsatisfactory manner and will use commercially reasonable efforts to replace such unsatisfactory personnel with an acceptable substitute(s).
Independent Contractor. While at Customer’s facilities, all Rancher Personnel shall observe and follow Customer’s reasonable work rules, policies and standards, as communicated to Rancher in advance in writing. Rancher shall be solely responsible for (i) the payment of all wages, salaries, overtime pay and other compensation due to Rancher Personnel, (ii) the payment for and the provision of all benefits and workers’ compensation insurance in accordance with Rancher’s corporate policies, (iii) the withholding of all employment related taxes for such employees and the payment, as applicable, of employment related taxes and Workers’ Compensation Insurance. No Rancher Personnel shall be entitled to participate in, or receive any benefit or rights as an employee of any Customer entity under, any of the Customer employee benefit and welfare plans, including, without limitation, employee insurance, pension, savings and security plans, as a result of or in connection with this Agreement.
Customer Facilities. If required to perform the Services, Rancher Personnel shall be provided a safe and adequate workspace at the client’s offices. The Customer shall provide all such facilities, supplies, and services as Rancher determines are reasonably required for the performance of the Rancher Personnel’s duties under this Agreement, including sufficient network access to allow for internet (and intranet, if required) access from the Rancher Personnel’s laptop.
Remote Work; Multiple Personnel; Work Schedule. At Rancher’s discretion the Services may be delivered onsite, remotely, or as a mix of on-site and remote delivered services, using multiple personnel, or as the Parties agree in an applicable Statement of Work. Rancher Personnel will deliver Services on a forty hour per week basis, Monday through Friday, between the hours of 8:00 am and 7:00 pm (the “Regular Work Hours”), time zone for delivery shall be mutually agreed upon by the parties and defined in the SOW. Services delivered outside Regular Work Hours, or on holidays, will be charged at two hundred percent (200%) of contracted rates. Rancher company holidays, for personnel rendering services in the United States are: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day. Holidays for Rancher personnel delivering Services outside the United States are specified in the applicable Statement of Work.
Deliverables. Services are provided on a time and materials basis with no deliverables except those specified in an executed Statement of Work. Projects are considered complete and accepted when the Professional Services or Training hours purchased by Customer are complete. Customer’s payment of an invoice constitutes acceptance of the Services invoiced.
Term. Unless otherwise agreed by the Parties, Services are to be delivered within 12 months from the date of purchase. Services not delivered within this term will be considered forfeited.
Payment of Expenses. Any travel or other expenses associated with performing Rancher Services under an executed Statement of Work will be billed to the Customer at actual cost and Rancher will provide supporting documentation for such expenses unless otherwise agreed to in writing in the applicable SOW. Customer will be responsible for any change or cancellation fees incurred in the event that Customer requests to reschedule the performance of Services or does not meet the requirements described in the Customer Facilities section.
Limitations. This Training Addendum will only apply where Customer is purchasing Rancher Training Services.
Rancher Training Services. “Training” means Rancher’s training courses delivered onsite or remotely as the Parties agree in an applicable Order Form. “Participant” means a client designee who is receiving the Training. Rancher will provide Customer and Participants with Training as specifically set forth in an Order Form executed by the parties. This addendum is incorporated by reference into the Rancher Enterprise Agreement (together the “Agreement”). Upon the execution of an Order Form by the parties, it shall automatically be deemed part of the Agreement.
Rancher Personnel. The Rancher Personnel assigned to deliver Training shall have appropriate technical and professional skills to enable them to perform their duties in a professional manner, consistent with generally accepted industry standards. Customer will promptly notify Rancher of any Rancher Personnel that Customer believes are performing in an unsatisfactory manner. Rancher will cooperate with Customer in removing any Rancher Personnel who perform the Services in an unsatisfactory manner and will use commercially reasonable efforts to replace such personnel with an acceptable substitute(s).
Customer Facilities. If Training is to be delivered at a Customer office, Rancher Personnel shall be provided a safe and adequate workspace. The Customer shall provide all such facilities, supplies, and services as Rancher determines are reasonably required for the performance of the Rancher Personnel’s duties under this Agreement, including sufficient network access to allow for internet access from the Rancher Personnel’s laptop, and from Participants receiving the training.
Remote Work; Multiple Personnel; Work Schedule. Training may be delivered onsite, remotely, or as a mix of onsite and remote delivered Training, using multiple personnel, as the Parties agree in an applicable Order Form. Following the purchase of Training, Training will be delivered at a schedule mutually agreed by the Parties and subject to Rancher Personnel availability. Rancher Personnel will deliver Training Monday through Friday, between the hours of 8:00 am and 7:00 pm (the “Regular Work Hours”), the time zone for delivery shall be mutually agreed upon by the Parties. Rancher does not deliver Training outside Regular Work Hours, or on holidays. Rancher company holidays, for personnel rendering services in the United States are found at: www.rancher.com/holidays. For Training conducted outside the U.S. holiday schedules will be provided upon Customer request.
Deliverables. Training is provided with no deliverables. Training is considered complete and accepted when the Training purchased by Customer has been performed. Customer’s payment of an invoice constitutes acceptance of the Training invoiced.
Training Materials. Following conclusion of the delivery of Training and at Customer’s request, Rancher will provide to Customer a copy of any prepared material used in delivery of the training; this material remains the sole and exclusive property of Rancher, is not work product of this engagement, and is considered Confidential Information under the Agreement. Notwithstanding the foregoing, Rancher grants customer a limited, non-exclusive, worldwide license, with no right to updates, to copy and distribute the materials for distribution solely among Customer personnel who need the training materials.
Term. Unless otherwise agreed by the Parties, Training is to be delivered within 12 months from the date of purchase. Training not delivered within this term will be considered forfeited.
Payment of Actual Expenses. Any travel or other expenses associated with performing Training will be billed to the Customer at actual cost and Rancher will provide supporting documentation for such expenses. Customer will be responsible for any change or cancelation fees incurred in the event that the Customer request to reschedule Training or Customer does not meet the requirements described in the “Customer Facilities” section.
Prepaid Flat Rate Expenses. Alternatively, the Customer may choose to pre-pay travel or other expenses at a flat rate by ordering prepaid travel and expenses with training in an Order Form. Should Customer prepay expenses at a flat rate, supporting documentation for expenses will not be provided, and travel expenses are non-refundable.
Use of Rancher Hosted Services
Security and Data Privacy.
Security. We will implement commercially reasonable and appropriate measures designed to secure your CPE against accidental or unlawful loss, access or disclosure.
Personal Data. Receiving the Rancher Hosted Services does not require you to provide any Personal Data to Rancher. The Parties agree that, except for Personal Data contained in the Agreement, or necessary to provision the Rancher Hosted Services, you agree you will not transmit to Rancher any Personal Data from you, your company, your company’s employees, agents, contractors, customers, or affiliates. For purposes of this paragraph Personal Data means: any information relating to an identified or identifiable natural person, including, but not limited to: any information that is clearly about a particular person and can be used to identify such person, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. If you inadvertently transmit to Rancher any Personal Data we agree: (i) Rancher will destroy such Personal Data, (ii) you will indemnify and hold Rancher harmless from any third-party claim brought against Rancher or its Affiliates arising out of your transmittal to Rancher of Personal Data.
Data Privacy. You consent to the storage of your CPE in, and transfer of your CPE into, the Amazon Web Services regions available with the Rancher Hosted Services and chosen by you. We will not access or use your CPE except as necessary to maintain or provide the Rancher Hosted Services, or as necessary to comply with the law or a binding order of a governmental body. We will not move your CPE from the AWS regions selected by you except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 4.1.1.
Your CPE. Except for the activities Rancher undertakes on your behalf within your CPE pursuant to this Agreement, and except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your CPE, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your CPE. You will ensure that your CPE and your and End Users’ use of your CPE or the Rancher Hosted Services will not violate the Agreement, this Addendum, the Acceptable Use Policy, or applicable law. You are solely responsible for the your development, operation, maintenance, and use of your CPE.
Your Security and Backup. You are responsible for properly configuring and using the Rancher Hosted Services and otherwise taking appropriate action to secure, protect and backup your accounts and your CPE in a manner that will provide appropriate security and protection, which might include use of encryption to protect your CPE from unauthorized access and routinely archiving your CPE.
Log-In Credentials and Account Keys. Rancher Hosted Services log-in credentials are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your log in credentials to your agents and subcontractors performing work on your behalf.
End Users. You are responsible for End Users’ use of your CPE and the Rancher Hosted Services. You will ensure that all End Users comply with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to your CPE and the Rancher Hosted Services by such End User.
Generally. We may suspend your or any End User’s right to access or use any portion or all of the Rancher Hosted Services immediately upon notice to you if we determine:
Effect of Suspension. If we suspend your right to access or use any portion or all of the Rancher Hosted Services: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
Rancher Hosted Services Term. Any Rancher Hosted Services that Customer orders will start on the specified subscription start date as identified in the applicable Order Form and end at the expiration of the Rancher Hosted Services Subscription Term as defined in the applicable Order Form unless sooner terminated according to this Addendum. Rancher Hosted Services Subscriptions automatically renew for successive twelve (12) month terms unless either party gives written notice to the other party of its intention not to renew. Notice of non-renewal must be given at least sixty (60) days before the expiration of the applicable Subscription Term.
Termination of this Addendum
Termination for Cause. Either party may terminate this Addendum by notice to the other party if (a) the other party materially breaches this Addendum and does not cure the breach within thirty (30) days after written notice.
Additional Termination Rights. In addition to the termination rights under section 8.2.1, we may also terminate this Addendum immediately upon notice to you: a) if our relationship with a third-party partner who provides software or other technology we use to provide the Rancher Hosted Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Rancher Hosted Services, or c) in order to comply with the law or requests of governmental entities.
Effect of Termination.
Limitations on Liability.
IN ADDITION TO THE LIMITATIONS FOUND IN SECTION 8 OF THE AGREEMENT, AND WITH RESPECT TO THE RANCHER HOSTED SERVICES, RANCHER AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU FOR OR BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; © ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
This Acceptable Use Policy (this “Policy”) describes prohibited uses of the Rancher Hosted Services. The examples described in this Policy are not exhaustive. We may modify this Policy at any time by giving you thirty days written notice. If you violate the Policy or authorize or help others to do so, we may suspend or terminate your use of the Services.
No Illegal, Harmful, or Offensive Use or Content
Generally. You may not use, or encourage, promote, facilitate or instruct others to use, the Services or the Rancher Site for any illegal, harmful, fraudulent, or infringing, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, or infringing. Prohibited activities or content include:
Illegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.
Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
No Security Violations
Generally. You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
Interception. Monitoring of data or traffic on a System without permission.
Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.
No Network Abuse
Generally. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.
Our Monitoring and Enforcement
We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Services. We may: a) investigate violations of this Policy or misuse of the Services or b) remove, disable access to, or modify any content or resource that violates this Policy or any other agreement we have with you for use of the Services.
This Service Level Agreement (“SLA”) is a policy governing the use of the Rancher Hosted Services and applies separately to each instance of the Rancher Hosted Services purchased on an Order Form. In the event of a conflict between the terms of this SLA and the terms of the Rancher Enterprise Agreement or other agreement with Rancher governing your use of our Services, the terms and conditions of this SLA apply, but only to the extent of such conflict. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Agreement.
Rancher will use commercially reasonable efforts to make the Rancher Hosted Services available with a Monthly Uptime Percentage of at least 99.90% during any month as defined below (the “Service Commitment”). Monthly Minutes are calculated by multiplying the number of days in a calendar month by 1,440. Monthly Uptime Minutes are calculated by multiplying the Monthly Minutes, less the scheduled maintenance window minutes and any other exclusions as defined in Section 4, by 99.90%. Actual Monthly Uptime Minutes are calculated according to the terms of Section 3.
Monthly Uptime Measurement
The Parties agree Rancher will measure up-time using a third party, up-time monitoring system. Data points will be collected at least once a minute. The endpoint for the Customer’s Rancher installation will be queried and must respond within 5 seconds with an HTTP 200 return code to be considered within the SLA. No response, non-HTTP 200 return code, or a response longer than 5 seconds will be considered downtime. This will be the only measurement for Rancher compliance with the Service Commitment. All minutes qualifying under this section will be counted in the Actual Monthly Uptime Minutes.
Service Level Credit Details
The Service Level Credit will be calculated on a monthly basis. In the event that Rancher fails to meet the Service Commitment, Rancher Labs will credit to the Customer an amount calculated as follows: For the Service Level Credit the Effective Monthly Fees will mean: the yearly fees paid for the Rancher Hosted Services and corresponding Rancher Support Services divided by twelve. The Service Level Credit will be calculated as follows: The Effective Monthly Fees divided by Monthly Uptime Minutes (the “Per Minute Credit”) multiplied by the Monthly Uptime Minutes minus the Actual Monthly Uptime Minutes (the Service Commitment Default Minutes). For illustrative purposes, if the Monthly Uptime Minutes were 42,897 and the total number of Actual Monthly Uptime Minutes were 41,000, and the Effective Monthly Fees were $8,333.33, the Service Level Credit would be calculated as follows: Per Minute Credit X Service Commitment Default Minutes or (8,333.33 ÷ 42,897) X (42,897 - 41,100). In no case will the Service Level Credit exceed the amount of fees (calculated on a monthly basis) the Customer paid for the Rancher Hosted Services.
Service Level Credit Limits and Payment
Service Level Credits will not entitle the Customer to any refund or other payment from Rancher. A Service Level Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one hundred dollars ($100 USD). Service Level Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, the Customer’s sole and exclusive remedy for any unavailability or non-performance or other failure by Rancher to provide Rancher Hosted Services is the receipt of a Service Level Credit in accordance with the terms of this SLA.
Service Level Credit Requests