Software License Agreement

Puppet Enterprise™

PLEASE READ THIS SOFTWARE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING PUPPET ENTERPRISE (“SOFTWARE”).  BY CLICKING THE “I ACCEPT” BUTTON OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS.  IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SOFTWARE.  IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO ACCESS, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.

This Agreement, including all referenced documents located at the URLs listed below, is between Puppet Labs, Inc. ("Puppet Labs") and you, the purchaser of the license to the Software ("Customer"). This Agreement is effective ("Effective Date") the earlier of the date that Customer signs or accepts this Agreement and the date that Customer begins using the Software.  This Agreement applies where Software includes it upon download or where Puppet Labs refers to it in a proposal or quote.

1. ORDERS.  Customer may purchase licenses to the Software from time-to-time by submitting a purchase order to Puppet Labs (an “Order”), which must correspond to a valid Puppet Labs quote.  All such purchases are subject to the provisions of this Agreement.  This Agreement supersedes any conflicting provisions on an Order, and Puppet Labs rejects any additional provisions that it has not expressly agreed to in writing.  The Software is deemed accepted upon download.
2. LICENSE.  Subject to Customer’s compliance with this Agreement, Puppet Labs grants to Customer a worldwide, limited, non-transferrable, revocable license to use the Software for the purpose of managing Customer’s IT infrastructure (whether on premises or in the cloud).  Customer may reproduce the Software and use multiple copies concurrently, subject to the pricing terms of Section 6.
3. SOURCE CODE.  The source code for the Software is available through www.puppetlabs.com.  Portions of the source code are subject to the provisions of an “open source” license (the “Open Source Components”).  The applicable license and its associated components are listed at http://www.puppetlabs.com/puppet-enterprise-components-licenses/.
4. THIRD PARTY SOFTWARE.  The Software includes components that included under license from third parties (the “Third Party Software”).  The components and their applicable third-party license terms are listed at http://www.puppetlabs.com/puppet-enterprise-components-licenses/.
5. RESTRICTIONS.  The Software is licensed, not sold.  Customer may not use the Software other than for Customer’s internal business purposes, and not for the purposes of any third party nor for any timesharing, rental, Internet, or application service provider, commercial hosting services, or service bureau basis.  Other than as granted in Section 2, Puppet Labs and its licensors retain all right, title and interest in and to the Software, including all intellectual property rights, registered or unregistered, and wherever in the world those rights may exist (collectively, the “Puppet Labs Rights”).  The Puppet Labs Rights include graphics, user and visual interfaces, design, structure, selection, coordination, expression, "look and feel", arrangement, trademark, logo and other distinctive brand features of the Software (collectively, the “Puppet Labs Marks”).  This Agreement does not permit Customer to distribute any product or service using the Puppet Labs Marks, including in connection with any Open Source Components.  Puppet Labs shall retain title to all copies of the Software provided to Customer or made by Customer.  There are no implied rights or licenses in this Agreement.  All rights are expressly reserved by Puppet Labs.
6. FEES AND PAYMENT.  Customer will pay Puppet Labs a fee for a license subscription and for support and maintenance (per Section 7) based on the number of “Nodes” managed by the Software.  A “Node” is a single network-connected device such as a server, desktop, or laptop (virtual machines that have a unique IP address are a separate Node from the physical machine on which they reside).  Customer may manage up to 10 Nodes perpetually and at no charge (the “Free License”).  Customer may manage more than 10 Nodes for a specific term in exchange for a fee (a “Paid License”); the fee, number of Nodes and subscription term will be stated in Customer’s Order and in a license file that accompanies the Software.  The default subscription term is one year.  Unless otherwise stated in the Order, the subscription term will automatically renew unless either party elects to not renew it upon 30 days’ notice prior to the end of the then-current term.  Customer agrees to pay Puppet Labs all fees within 30 days of invoice date.  All payments shall be made in currently available funds payable at the address set forth on Puppet Labs’ invoice.  All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes (other than taxes based on Puppet Labs’ income).  Any overdue amounts are subject to a late payment charge of the lower of 1.5% per month and the highest interest rate permitted by applicable law.  All fees are non-refundable.
7. SUPPORT; CHANGES.
7.1 Support and Maintenance.  In connection with any Paid License, Puppet Labs will provide Customer the support and maintenance services (“Support Services”) listed at http://www.puppetlabs.com/support-terms/, at either the “Standard” or the “Premium” level, as indicated in the Order.  There is no support or maintenance available in connection with a Free License. If Support Services are terminated for any reason, any later reinstatement is at Puppet Labs’ sole option and is conditioned on (a) Puppet Labs offering Support Services to its customers generally for the Software in question, and (b) if Support Services have been terminated for more than thirty (30) days, Customer paying Puppet Labs all applicable Support Services fees for the period during which Customer was off Support Services, plus fees for the new Support Services term.
7.2 Modules and Customer Changes.  Puppet Labs makes available certain modules (“Modules”) that may be used in connection with the Software, either bundled with the Software (including in an update or upgrade later provided) or through its web site forge.puppetlabs.com (“Puppet Forge”).  Any Modules bundled with the Software are licensed under this Agreement, and any Modules obtained through the Puppet Forge are subject to their accompanying license. Except for Modules that are bundled with the Software or where otherwise indicated by Puppet Labs on the Puppet Forge, Puppet Labs is not liable to support any Module, nor are such Modules covered by the warranty and indemnity terms of this Agreement. Furthermore, Puppet Labs is not responsible to support, and is not liable under this Agreement in any way (including warranty and indemnity) for, any changes made by Customer to the Software.
8. WARRANTY; DISCLAIMER
8.1 General Warranties.  Puppet Labs represents and warrants that it has sufficient ownership or authority to grant to Customer the license stated in Section 2.  Each party represents and warrants that: (a) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (b) it has complied, and will in the future comply, with all applicable laws in connection with the execution, delivery and performance of this Agreement.
8.2 Product Warranty.  Puppet Labs warrants to the Customer that the Software will perform in all material respects as specified in its accompanying documentation under normal use for a period of thirty (30) calendar days from initial receipt or access.  Customer’s exclusive remedy for a breach of this limited warranty is to return any allegedly defective Software and Puppet Labs, at its option, will replace it or refund any fee paid for the Software.  This warranty applies to Third Party Software only to the extent its failure to operate causes the Software to fail to conform to this warranty.
8.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, PUPPET LABS DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND THOSE THAT MAY ARISE FROM ANY COURSE OF DEALING OR PERFORMANCE.
9. INDEMNIFICATION.
9.1 Obligation.  Subject to the conditions and exceptions listed below, Puppet Labs will defend Customer and Customer’s shareholders, directors, and employees (the “Defendants”) against a third party’s claim that Customer’s use of the Software (in the form delivered to Customer and as authorized in this Agreement) infringes or misappropriates the third party’s copyright or United States trade secret rights, or directly infringes a valid United States patent that issued as of the Effective Date (in each case, a “Claim”), and will further indemnify the Defendants against any damages, fees (including reasonable attorney fees), costs and expenses which are included in a final award, judgment or settlement of a Claim.
9.2 Conditions.  Puppet Labs’ obligations in Section 9.1 are conditioned on (a) Customer notifying Puppet Labs immediately upon receiving a Claim and providing Puppet Labs with a written copy of the Claim, (b) Customer cooperating with Puppet Labs in the defense or settlement of the Claim, and (c) Customer providing Puppet Labs with all necessary authority for Puppet Labs to defend or settle the claim. Customer may participate in the defense or settlement of the Claim at its own expense.  Following notice of a Claim, or if in its discretion Puppet Labs determines that a Claim is likely, Puppet Labs may, at its sole option, procure for Customer the right to continue to use the Software as furnished, or replace or modify the Software to make it non-infringing, or terminate this Agreement and refund to Customer any amounts that Customer pre-paid for an unused license and support and maintenance term.
9.3 Exceptions.  Puppet Labs has no obligation under Section 9.1 with respect to any Claim based upon or otherwise relating to: (a) any use of the Software that is not authorized by this Agreement; (b) the combination of the Software with other products, services, equipment, software, or data not supplied by Puppet Labs; (c) any modification of the Software by any person other than Puppet Labs or its authorized agents; or (d) any Third Party Software.
9.4 THIS SECTION REPRESENTS PUPPET LABS’ ENTIRE LIABILITY TO CUSTOMER FOR INDEMNITY OF THIRD PARTY INTELLECTUAL PROPERTY CLAIMS.
10. LIMITATION OF LIABILITY.  EXCEPT AS STATED BELOW, EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED AS FOLLOWS:  (A) NEITHER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, LOST DATA OR LOST SAVINGS); AND (B) NEITHER SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS IN EXCESS OF THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE AMOUNTS PAID BY CUSTOMER TO PUPPET LABS IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.  THESE LIMITS DO NOT APPLY TO ANY LIABILITY THAT ARISES FROM ANY CLAIM FOR UNPAID FEES OR THE UNLICENSED USE OF THE SOFTWARE.  THESE LIMITS APPLY REGARDLESS OF THE FORM OF CLAIM (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THIS SECTION 10 IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.  IN SUCH EVENT, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11. INSPECTION.  During the term of this Agreement and for one year thereafter, Puppet Labs or its designated agent may inspect Customer’s facilities and records to verify Customer’s compliance with this Agreement.  Any such inspection will take place only during normal business hours and upon not less than ten business days written notice.  Customer shall reasonably cooperate with the inspection, making such personnel and records available as Puppet Labs may reasonably request.  If the inspection reveals that Customer has been using the Software beyond Customer’s license under this Agreement, Customer will pay Puppet Labs immediately for such excess use.  If such additional payment exceeds ten percent (10%) of the fees previously paid by Customer for the period during which such excess use occurred, Customer will also pay Puppet Labs for the cost of the inspection.
12. EXPORT CONTROL.  As required by the laws of the United States and other countries, Customer represents and warrants that Customer: (a) understands that the Software and its components may be subject to export controls under the U.S. Commerce Department's Export Administration Regulations ("EAR"); (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations; (c) will not export, re-export, or transfer the Software to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use or transfer the Software for use in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license; and (e) understands that countries including the United States may restrict the import, use, or export of encryption products (which may include the Software and the components) and agrees that Customer shall be solely responsible for compliance with any such import, use, or export restrictions.
13. GOVERNMENT USERS.  The Software contains "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1).  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 Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations and its successors.  If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
14. TERMINATION. This Agreement begins on the Effective Date and continues in force until terminated by mutual agreement, unless Customer or Puppet Labs elects in writing to terminate it sooner due to (a) the other party’s material breach, provided that the terminating party gives the breaching party at least 30 days written notice and opportunity to cure, or (b) the other party making a general assignment for the benefit of creditors, suffering or permitting the appointment of a receiver for its business or assets, or availing itself of or becoming subject to any proceeding under the US Federal Bankruptcy Act or any other foreign or domestic statute, law, rule or regulation relating to insolvency or the protection of rights of creditors.  All fees are non-refundable.  Upon termination, Customer must uninstall the Software from Customer’s computer systems. The following Sections survive termination: 3, 4, 5, 8, 9, 10, 11, 14 and 16.
15. ASSIGNMENT.  Except as stated below, neither party may assign nor delegate its rights or obligations under this Agreement (an “Assignment”) to any other person or entity without the consent of the other party, which consent shall not be unreasonably withheld.  For purposes of this section, “Assignment” includes assignment by operation of law.  A party may execute an Assignment if: (a) the other party consents in writing; (b) the Assignment is part of a reorganization or restructuring where there is no “Change in Control” (defined below); or (c) there is a transaction that results in a “Change in Control” of the assigning party (be it by merger, stock sale, asset sale or otherwise).  “Change in Control” means (i) a merger or consolidation of the party in which the stockholders of the party immediately prior to such transaction would own, in the aggregate, less than 50% of the total combined voting power of all classes of capital stock of the surviving entity or (ii) the sale by the party of all or substantially all the party's assets in one transaction or in a series of related transactions.  Any attempted assignment or delegation in violation of this section is void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.
16. GENERAL.  The laws of the State of Oregon, U.S.A., govern this Agreement (without regard to Oregon conflict of laws rules and excluding the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act).  Customer agrees to exclusively resolve all disputes, claims and controversies arising from or relating to this Agreement in the state or federal courts located in Multnomah County, Oregon, and Customer irrevocably waives any objection to such exclusive jurisdiction.  Customer agrees that any breach of Section 5 or other infringement or misappropriation of the Puppet Labs Rights will result in immediate and irreparable damage to Puppet Labs for which there is no adequate remedy at law.    Customer and Puppet Labs may only amend or modify this Agreement, or waive any right under this Agreement, in a writing that is signed by both parties and that expressly references this Agreement.  No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions.  Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.  As used in this Agreement, “includes” (or “including”) means without limitation.  This Agreement constitutes the entire agreement between the parties with respect to the Software and its related support and maintenance, and supersedes all prior and contemporaneous agreements or communications.
