License agreement

THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND DYNATRACE LLC AND ITS AFFILIATED ENTITIES (“DYNATRACE”). DYNATRACE IS WILLING TO LICENSE THIS SOFTWARE (“SOFTWARE”) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BEFORE YOU CLICK ON THE “ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE: (1) REPRESENTING THAT YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND YOUR EMPLOYER TO THE TERMS OF THIS AGREEMENT; AND (2) CONSENTING ON BEHALF OF YOURSELF AND/OR YOUR EMPLOYER, AS APPLICABLE, TO BE BOUND BY THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DYNATRACE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE “DO NOT ACCEPT” BUTTON TO DISCONTINUE THE INSTALL PROCESS AND CONTACT YOUR DYNATRACE SALES REPRESENTATIVE.

1. DEFINITIONS

The following terms shall have the meanings set forth below, unless otherwise indicated:

(a) “Agreement” means this License Agreement, including Product Schedules and written amendments that have been signed by both parties.

(b) “Concurrent User(s)” means the maximum number of users who are licensed to access the Software at any given time.

(c) “Documentation” means the technical specifications contained in the user and system documentation that are made generally available to Dynatrace’s licensees.

(d) “Licensed Computer(s)” means the designated processing unit(s) owned or leased by Licensee, upon which the Software is licensed to operate.

(e) “Licensed Location(s)” means the physical location(s) at which the Software is licensed to operate, as set forth on the Product Schedule.

(f) “Named Users” means the maximum number of identified individual computers on which Users are authorized to access the Software.

(g) “Product Schedule” means each Dynatrace ordering document signed by the duly authorized representatives of both parties, which identifies the Software or services ordered by Licensee from Dynatrace and which incorporates the terms and conditions of this Agreement by reference.

(h) “Software” means the proprietary software product(s) provided in machine-readable object code form, including any related Documentation, governed under this Agreement.

(i) “Users” means Named or Concurrent Users, as applicable.

2. LICENSE GRANT

(a) Dynatrace hereby grants to Licensee a non-exclusive, non-transferable, perpetual, unless otherwise noted, license to install and use the Software set forth in the applicable Product Schedule in accordance with the Documentation, solely for Licensee’s own internal business operations, and in accordance with the scope and type of use set forth in such Product Schedule. Licensee’s use rights in Software shall include any Licensee subsidiary which is greater than fifty (50%) percent owned by Licensee provided such subsidiary agrees to comply with the terms and conditions of this Agreement.

(b) The Software may be used only by Licensee, for the benefit of Licensee, to process Licensee’s own data for Licensee’s own internal operations. The Software may also be used by Licensee contractors under obligation of non-disclosure solely for the benefit of Licensee. Licensee shall ensure that each person authorized to use the Software under the terms of this Agreement is informed of and agrees to conform to the obligations of the Licensee hereunder. Licensee may not use the Software to offer data processing services to third parties, including but not limited to outsourcing or service bureau use. Licensee may not use the Software in contravention of any applicable laws or government regulations. Without limiting the foregoing, under no circumstances may the Software be used for, or otherwise disclosed to a competitor of Dynatrace.

(c) Licensee may use the Software temporarily on an alternate processing unit other than the Licensed Computer for a reasonably necessary period while the Licensed Computer is inoperable due to a disaster. Any other use on an alternate processing unit requires Dynatrace’s prior written approval.

3. PAYMENTS

Licensee shall pay Dynatrace the amounts set forth on any invoice resulting from this Agreement within thirty (30) days of the date of the invoice. Dynatrace may impose a late payment charge equal to the lesser of 1 ½% per month or the maximum rate allowed by law. The parties agree that this paragraph shall override and supersede any provision to the contrary set forth on a purchase order or invoice.

4. TITLE, PROPRIETARY RIGHTS

(a) Title and full ownership rights to the Software and all intellectual property rights therein including patent, copyright, trademark and trade secret rights shall remain with Dynatrace. Dynatrace reserves all rights granted to it under copyright, patent and other intellectual property laws.

(b) Licensee shall not sublicense, distribute, modify, create derivative works or of reverse engineer the Software. Licensee shall not make copies or reproductions of the Software, except for copies solely for internal archive and backup purposes. Such copies shall display all Dynatrace legends and notices. At Dynatrace’s request, not to exceed more than once per calendar year, Licensee shall certify in writing that the Software is being used in compliance with this Agreement. If Licensee’s use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses and the unpaid license fees shall be payable in accordance with this Agreement. Without limiting the foregoing, under no circumstances may the Software be used for, or otherwise disclosed to a competitor of Dynatrace.

5. TAXES AND DUTIES

Licensee shall be responsible for taxes levied on any transaction under this Agreement, including but not limited to all federal, state, and local taxes, levies and assessments, excluding any tax based on Dynatrace’s income.

6. ASSIGNMENT

Licensee shall not assign or transfer this Agreement, the use of the Software or its rights or obligations under this Agreement without the prior written consent of Dynatrace.

7. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

(a) In the event an intellectual property right claim is brought against Licensee for use of the Software, Dynatrace agrees to indemnify Licensee, provided Licensee (i) gives Dynatrace prompt written notice of such claim, (ii) permits Dynatrace to solely defend and/or settle the claim, and (iii) provides reasonable assistance in defending and/or settling the claim. In the defense or settlement of such claim, Dynatrace may, at its option (i) obtain for Licensee the right to continue using the Software, (ii) replace or modify the Software so that it avoids such claim, or if such remedies are not reasonably available, (iii) accept the return of the infringing Software and provide Licensee with a refund of the license fees paid for the infringing Software pro-rated equally over a sixty (60) month period from the date of delivery of the Software. Dynatrace shall have no liability if the claim is based on (i) an unauthorized modification of the Software or (ii) use of the Software other than as authorized under this Agreement.

(b) This Section 7 states the entire liability of Dynatrace, and Licensee’s sole and exclusive remedies, with respect to intellectual property right claims.

8. LIMITED WARRANTIES AND REMEDIES

(a) Dynatrace warrants and represents that at the time of delivery and for a period of ninety (90) days thereafter: (i) the Software will operate in substantial accordance with the Documentation, and (iii) the Software media will be free of defects in material and workmanship under normal use.

(b) DYNATRACE HEREBY DISCLAIMS, ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

(a) EXCEPT AS PROVIDED IN SECTION 7 OF THIS AGREEMENT, THE ENTIRE LIABILITY OF DYNATRACE AND LICENSEE’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE THAT IS THE SUBJECT MATTER OF SUCH ACTION, PRO-RATED EQUALLY OVER A SIXTY (60) MONTH STRAIGHT LINE DEPRECIATION AS OF THE DATE OF DELIVERY OF THE SOFTWARE.

(b) IN NO EVENT WILL DYNATRACE BE LIABLE FOR (i) INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; (ii) LOSS OF OR DAMAGE TO LICENSEE’S DATA FROM ANY CAUSE, INCLUDING WITHOUT LIMITATION LOSS OF USE, REVENUES, PROFITS OR SAVINGS, EVEN IF DYNATRACE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN SECTION 7 ABOVE, IN NO EVENT WILL DYNATRACE BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AGAINST LICENSEE BY ANY THIRD PARTY.

10. MAINTENANCE SERVICE

(a) Maintenance Service will be provided at no additional charge for the period, if any, stated in the applicable Product Schedule(s).

(b) If Licensee is current in the payment of all license and Maintenance Service fees, Dynatrace will make available the following Maintenance Service (“Maintenance Service”):

(i) maintain the Software in an operable condition in substantial accordance with the then-current Documentation;
(ii) telephone technical support;
(iii) Dynatrace-designated updates and enhancements to the Software that Dynatrace generally makes available without charge to other Licensees of the Software under Maintenance Service; and
(iv) use commercially reasonable efforts to provide correction, replacement or other services for a defect.

(c) Maintenance Service may be automatically renewed on an annual basis unless Licensee provides written notice to Dynatrace to discontinue Maintenance Service at least sixty (60) days prior to the renewal date. If Licensee discontinues Maintenance Service, and thereafter elects to reinstate Maintenance Service, Dynatrace’s then-current maintenance rates and terms shall apply. Dynatrace reserves the right to suspend Maintenance Service if Licensee fails to pay.

11. DEFAULT

Either party may terminate the Agreement if the other fails to cure a default within thirty (30) days of written notice. Dynatrace may immediately terminate the Agreement for a violation of Dynatrace’s intellectual property rights. Any terms of this Agreement which by their nature extend beyond its termination shall remain in effect. Upon termination of this Agreement, Licensee shall immediately either destroy or return the Software to Dynatrace and certify in writing to Dynatrace that all copies of the Software are no longer in use.

12. CONFIDENTIALITY

(a) Each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include all information which, to a reasonable person, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the Software and the terms and pricing of this Agreement are the Confidential Information of Dynatrace. Licensee will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Software. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

(b) Information will not be deemed Confidential Information hereunder if such information: (a) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (b) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) lawfully becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

13. NOTICES

Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable ordering document (Product Schedule, quote or purchase order).

14. GOVERNING LAW

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Delaware.The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If the entity selling the Software is an Affiliate of Dynatrace LLC, this Agreement will be governed by the laws of the country in which such Dynatrace Affiliate is situated, and the parties consent to the exclusive jurisdiction of the courts where such Dynatrace Affiliate is located.

15. EXPORT CONTROLS

Licensee acknowledges that this Software is subject to the U.S. Export Administration Regulations (the “EAR”) and Licensee will comply with the EAR. Licensee shall not export or re-export this Software, directly or indirectly, to: (1) any countries that are subject to US export restrictions; (2) any end user who Licensee 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, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government. In addition, Licensee is responsible for complying with any applicable local laws regarding export or use of this Software.

16. UNITED STATES GOVERNMENT RIGHTS

The Software is a “Commercial Item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), and is comprised of “commercial computer software” and “commercial computer software documentation”. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this License as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data), as well as Part 27.405(b)(2) of the Federal Acquisition Regulation (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this License as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or technical data under this License. Any restrictive markings or legends on the software shall not be removed by any party.

17. ENABLEMENT ASSISTANCE

Dynatrace retains full rights of ownership and use in: 1) any programs, products or methodologies of Dynatrace created by Dynatrace prior to or independently of the services contemplated herein (“Pre-existing Works”); and 2) all programs, products, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how, which may be created or developed in connection with the services and are modifications and/or derivatives of Dynatrace’s Pre-existing Works. Licensee must schedule any enablement assistance included on a Product Schedule within twelve (12) months of the order date or will forfeit the right to those services without refund. During the term of enablement assistance and for 12 months thereafter, both parties agree not to solicit or retain any employee of the other party who was engaged with or interacted with the other party pursuant to the enablement assistance The foregoing provision will not prohibit: i) general solicitations of employment in any public media; and ii) any individual responses or hiring decisions thereto.

18. EVALUATION COPY

This section shall only apply if the Software has been provided for Licensee’s evaluation of the Software (“Evaluation Copy”). An Evaluation Copy is deemed to be Software subject to all restrictions hereunder with the added restrictions that any such Software shall be considered to be provided for evaluation purposes only, shall not be put into productive use, and shall not be included as part of Licensee’s business processes in any manner, unless and until such software programs are licensed and paid for by Licensee. The Evaluation Copy is provided AS IS, with no warranties, express or implied, for the sole and exclusive purpose of enabling Licensee to evaluate the Software. The Evaluation Copy will automatically time-out at the end of the evaluation period. If Licensee elects to continue to use the Software at the end of the evaluation period, Licensee must contact a Dynatrace representative. When the Software is used for evaluation purposes as provided by this Section, the following Sections of this Agreement shall not apply: Section 3, Payment, Section 5, Taxes and Duties, Section 8, Limited Warranties and Remedies and Section 10, Maintenance Services.

19. ENTIRE AGREEMENT

This Agreement is the complete statement of the understanding between the parties, and supersedes all prior proposals and other communications between the parties. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party. Failure or delay by either party in exercising any right or remedy will not constitute a waiver. In the event that any provision of this Agreement shall be declared invalid, the entire Agreement shall not fail on its account, and that provision shall be severed, with the balance of this Agreement continuing in full force and effect. The terms and conditions contained in any purchase order issued by Licensee shall be of no force or effect, even if the order is accepted by Dynatrace. In the event of a conflict in terms among the Agreement and a Product Schedule, the Product Schedule shall control. Licensee is an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Dynatrace and Licensee. Certain Software contains product security measures which may include password protection, anti-copying subroutines or other security measures designed to restrict the installation and/or usage of the Software to the licensed configuration.