End User License Agreement

THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) GOVERNS END USER’S USE OF THE SOFTWARE. This EULA is made by and between Fortanix, Inc., a Delaware corporation (“Fortanix”), and the person or legal entity accepting this EULA, whether a Person or Entity Name, (“End User” or “Customer”). This EULA is a legal agreement between Fortanix and End User (each a “Party”, and together, the “Parties”). BY DOWNLOADING, DEPLOYING OR USING THE SOFTWARE, END USER AGREES TO BE BOUND BY THIE TERMS OF THIS EULA. IF END USER DOES NOT ACCEPT THE TERMS OF THIS EULA, END USER MAY NOT USE THE SOFTWARE. ANY INDIVIDUAL ACCEPTING THE TERMS OF THIS EULA ON BEHALF OF A LEGAL ENTITY MUST HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS EULA. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, THE INDIVIDUAL MUST NOT ACCEPT THIS EULA.

Fortanix and End User are individually referred to as a “Party” and collectively as the “Parties.”

1. License

1.1 License Grant. Subject to the terms and conditions of this EULA, Fortanix grants End User a non-exclusive, non-transferable limited license to use the Software unmodified solely for End User’s internal business operations, and subject to any provisions of any Documentation. End User may copy the Software, provided that such copies are made in machine readable form and are for backup purposes only.

1.2 Open Source. The Software consists of a combination of proprietary components that are owned by or licensed to Fortanix and some free or open source components (“Open Source”) that are identified at https://support.fortanix.com/hc/en-us/articles/360041034152-List-of-third-party-software-installed. Only those terms and conditions specified for, or applicable to, each specific Open Source software component pursuant to its applicable governing license shall be applicable to such Open Source software. Each Open Source component is the copyright of its respective copyright owner.

1.3 Evaluation License. If End User licenses the Software for evaluation purposes, End User’s use is permitted for a period of thirty (30) days (unless otherwise agreed between the Parties). End User may not use the Software with any production data. If End User uses the Software with an production data, it does so at its own risk. Notwithstanding any other provision of this EULA, the Software provided for evaluation purposes is provided “AS IS” without any indemnification, support or warranty of any kind, express or implied.

2. Ownership; Restrictions.

2.1 License Restriction. Without Fortanix’s prior written consent, End User must not, and must not allow any third party to: (a) use the Software in an application services provider, service bureau, hosted IT services, or similar capacity for third parties; (b) make available the Software in any form to any third parties, except as expressly permitted by Fortanix; (c) transfer or sublicense the Software or Documentation to any third party, except as expressly permitted under this EULA; (d) use the Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in the Documentation and/or the applicable Order; (e) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, except as expressly allowed under applicable law; (f) remove any copyright or other proprietary notices on or in any copies of the Software; or (g) violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.

2.2 Ownership. The Software and Documentation, all improvements, enhancements, modifications and derivative works of the Software and Documentation, and all Intellectual Property Rights in the Software and Documentation, are and will remain the sole and exclusive property of Fortanix and its licensors. End User’s rights to deploy and use the Software and Documentation are limited to those expressly granted in this EULA and any applicable Purchase Order. The Software is licensed to End User and is not sold. No other rights are implied with respect to the Software, Documentation, or any other related Intellectual Property Rights. Fortanix reserves all rights not expressly granted to End User. End User has no ownership rights in the Software. Fortanix does not transfer any ownership rights in any Software or Documentation.

3. Order.

End User Purchase Orders for Software are subject to this EULA. No Purchase Orders for Software are binding unless Fortanix accepts such Purchase Order or upon delivery of the Software to End User. All Purchase Orders are non-refundable and non-cancellable except as expressly provided in this EULA.

4. Maintenance, Support and Updates.

Support and subscription services for the Software are provided pursuant to Support Services Terms and are not subject to this EULA. End User has no rights to any updates, upgrades or extensions or enhancements to the Software unless Support Services are included as part of a license to the Software or purchased separately.

5. Records and Audit.

End User shall maintain accurate records of its use of the Software in order to demonstrate compliance with the terms of this EULA. Fortanix shall have the right to audit the records and End User’s use of the Software to confirm compliance with the terms of this EULA. Fortanix may conduct an audit no more than once per twelve (12) month period, and will only conduct audits during normal business hours. End User will cooperate with Fortanix and any independent third party auditor engaged by Fortanix. If any audit reveals any underpayment of more than five percent (5%) of the fees payable by End User for the audited period, End User fails to maintain accurate records or End User has failed to comply with the terms of this EULA, then End User shall pay for the reasonable costs of the audit.

6. Warranty.

6.1 Software Warranty. Fortanix warrants that the Software will, for a period of ninety (90) days following the notice of availability for download or delivery (the “Warranty Period”), substantially conform to the applicable specifications set forth in the Documentation for the Software, provided that: (i) the Software has been installed properly and used at all times in accordance with the applicable Documentation, and (ii) has not been modified other than by Fortanix or Fortanix’s authorized representatives. If the Software fails to substantially conform to its applicable specifications, during the Warranty Period, Fortanix will, at its expense verify and either (i) attempt to correct such reproducible error in the Software as reported by End User, or (ii) replace the Software. If Fortanix is unable to correct the error or replace the Software, then Fortanix will refund the fees paid for the affected Software, and the license for such Software shall terminate.

6.2 EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE SOFTWARE IS PROVIDED BY FORTANIX “AS IS” WITHOUT WARRANTY OF ANY KIND. FORTANIX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS, OR THAT THE SOFTWARE’S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED. FORTANIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

7. Termination.

7.1 Term. This EULA is effective until terminated. End User may terminate this EULA at any time by notifying Fortanix in writing, sixty (60) days in advance of requested termination date. No refund of any licensing fees will be provided.

7.2 Termination for Cause. Fortanix may terminate this EULA if: (i) End User breaches any provision of this EULA and fails to cure such breach within thirty (30) days after notice by Fortanix of such breach, or (ii) with immediate effect if End User breaches a provision that cannot be cured. If End User becomes, as applicable under local law, unable to pay its debts as they become due, ceases to do business, enters into a deed of arrangement, undergoes judicial management, commences the process of liquidation, has a receiver appointed or begins winding up or similar arrangements, then Fortanix may terminate this EULA upon thirty (30) days’ written notice.

7.3 Effect of Termination. Upon termination of this EULA, all licenses granted to End User will immediately end, and End User shall stop using the Software and shall either return or certify the destruction of the Software and any accompanying written materials in its possession or control. End User shall also return or destroy any Confidential Information in its possession or under End User’s control. Any provision that, by its nature and context is intended to survive termination or expiration of this EULA, shall survive, including Sections 1.2 (Open Source), 2 (Ownership; Restrictions), 5 (Records and Audit), 6.2, 7.3 (Effect of Termination), 8 (Confidential Information), 9 (Intellectual Property Indemnification), 10 (Limitation of Liability), 11 (Compliance) and 12 (Miscellaneous).

8. Confidential Information.

8.1 Confidential Information. “Confidential Information” means any business or technical information disclosed by one Party to the other Party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.

8.2 Use and Disclosure Restrictions. A receiving Party will not use the disclosing Party’s Confidential Information except as necessary for the performance or enforcement of this EULA and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this EULA; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Notwithstanding the foregoing, Fortanix may disclose Confidential Information to Fortanix Affiliates as required to perform or enforce this EULA, subject to the terms and conditions of this EULA. Each receiving Party will protect the disclosing Party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 8.2 will remain in effect during the Term and for a period of three (3) years after the expiration or termination of this EULA; provided that, to the extent any Confidential Information constitutes a trade secret, the receiving Party’s obligations under Section 8 will continue until such Confidential Information ceases to be a trade secret.

8.3 Exclusions. The obligations and restrictions set forth in Section 8 will not apply to any information that the receiving Party demonstrates, by written evidence: (i) is or becomes generally known to the public through no fault of or breach of this EULA by the receiving Party; (ii) is rightfully known by the receiving Party at the time of disclosure; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) the receiving Party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing Party.

8.4. Permitted Disclosures. The provisions of this Section 8 will not restrict either Party from disclosing Confidential Information pursuant to the requirement of a court, administrative agency, or other governmental body; provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such requirement or limit the scope of such request. The Party responding to such requirement will only disclose that information that is expressly required.

9. Intellectual Property Indemnification.

9.1 Indemnity. Fortanix shall defend End User, its affiliates and their respective officers, directors, employees and agents from and against any and all third party demands, claims, and investigations arising out of or related to any allegation that the Software infringes any third party’s United States patent, copyright or trademark or misappropriates any trade secret (but only to the extent that the misappropriation is not a result of End User’s actions), and indemnify End User from all fines, damages, and costs finally awarded by a court of competent jurisdiction or government agency, or agreed to in settlement.

9.2 Remedies. In the event that any or all of the Software subject to an infringement claim under Section 9.1, Fortanix shall, at its cost and at End User’s election: (a) modify the infringing Software to make it non-infringing; (b) obtain for End User a license to continue using the Software in the manner set forth in this EULA; or (c) refund to End User any prepaid fees, prorated for the remaining portion of the then-current term.

9.3 Procedure. End User shall notify Fortanix promptly of any claim for which it seeks indemnification or defense under Section 9.1. If End User elects to have Fortanix indemnify defend any such claim, End User shall: (a) grant Fortanix sole control over the defense and settlement of such claim, and (b) reasonably cooperate with Fortanix in such defense. Fortanix shall not settle any claim that imposes upon End User any liability, damages, restriction or obligation without End User’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed.

9.4 Exclusions. Notwithstanding the foregoing, Fortanix will have no liability with respect to any infringement claims arising out of: (i) combination of any Software with any hardware, software, or services not provided by Fortanix, where the combination causes the infringement and not the Software standing alone; (ii) modification of the Software other than by Fortanix; or (iii) use of Software other than in accordance with this EULA.

9.5 To the extent permitted by applicable law, this Section 9 states your sole and exclusive remedy and Fortanix’s entire liability for any infringement claims.

10. Limitation of Liability.

FORTANIX SHALL NOT BE LIABLE TO THE END USER CONCERNING THE SUBJECT MATTER OF THIS EULA, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, INTERRUPTION OR LOST, DESTROYED OR CORRUPTED DATA, USE, BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (B) DAMAGES, IN THE AGGREGATE, WHICH ARE GREATER THAN THE FEES PAID OR PAYABLE UNDER THIS EULA FOR 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION FIRST ACCRUED, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FOREGOING LIMITS OR EXCEPTIONS WILL NOT APPLY TO (I) FORTANIX’S INDEMNIFICATION OBLIGATIONS IN SECTION 9 (INDEMNIFICATION) OR (II) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY APPLICABLE LAW. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS EULA AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY IN THIS EULA.

11. Compliance.

End User will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, (i) all applicable export laws regarding the export or re-export of the Software, including, without limitation, the U.S. Export Administration Regulations and other end-user, end-use and destination restrictions issued by U.S. and other governments, and (ii) all applicable privacy and data protection laws and regulations. Without limiting the generality of the foregoing, End User expressly agrees that it shall not, and shall cause its representatives not to, export, directly or indirectly, re-export, divert or transfer the Software, or any direct product or portion thereof, either directly or indirectly, including via remote access, (i) to any country so restricted by the U.S. Export Administration Regulations, to any person or entity controlled by any such country, or to any national or resident of any such country, other than nationals who are lawfully admitted permanent residents of countries not subject to such restrictions, (ii) to any person or entity on the U.S. Treasury Department’s Specially Designated Nationals and Blocked Persons List, (iii) to any person or entity on the U.S. Commerce Department’s Denied Persons List, or (iv) to any person or entity to which sale is prohibited under the Enhanced Proliferation Control Initiative (“EPCI”). Fortanix shall be entitled to take all actions it deems necessary to ensure compliance with this Section, including, but not limited to, developing internal compliance practices such as performing checks and implementing use restrictions with respect to the Software. End user agrees to the foregoing and represents that End User is not located in, under the control of, a national or resident of any such country, on any such list, or subject to prohibition under EPCI.

12. Miscellaneous.

12.1 Subcontracting and Transfer. Fortanix may permit any of its Affiliates, independent contractor or other third party, to perform any of Fortanix’ obligations hereunder, provided that Fortanix remains primarily liable for the performance of its obligations. Fortanix may transfer this EULA or any of its rights and obligations hereunder to an Affiliate or to an entity which is acquiring all or substantially all of Fortanix’s business or assets with prior notice to Customer, and in all such events the person or entity to whom this EULA is assigned by Fortanix must agree in writing to be bound by all of the terms of this EULA. This EULA will be binding upon and inure to the benefit of all successors and permitted transferees of the Parties, who will be bound by all of the obligations of their predecessors or transferors.

12.2 Governing Law. This EULA and any disputes arising under, in connection with, or relating to this EULA will be governed by the laws of the State of California, excluding its conflicts of law rules. Any litigation pertaining to the interpretation or enforcement of this EULA shall be filed in and heard by the state or Federal courts located in Santa Clara, California, and the Parties hereby submit to the jurisdiction of and waive any venue objections against such courts. If any legal action is brought by either Party arising from, or related to, the subject matter of this EULA, the prevailing Party will be entitled to an award of its reasonable attorneys' fees and costs. English language shall be the applicable language and translation of the EULA and the Purchase Order.

12.3 Severability. If for any reason a court of competent jurisdiction finds any provision of this EULA invalid or unenforceable, that provision of the EULA will be enforced to the maximum extent permissible, and the other provisions of this EULA will remain in full force and effect.

12.4 Waiver. A failure by either Party to enforce any provision of this EULA will not constitute a waiver of future enforcement of that or any other provision. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

12.5 Relationship of Parties. The Parties to this EULA are independent contractors and this EULA will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

12.6 Notice. All notices required or permitted under this EULA will be in writing and will be deemed given: (a) when delivered personally; (b) two (2) business days after deposit with an internationally recognized express courier, with written confirmation of receipt; or (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices, approvals, consents and other communications will be sent to the address as may be specified by either Party to the other Party in this EULA or on the Purchase Order.

12.7 Force Majeure. Neither Party will be responsible or liable to the other Party for any failure or delay in its performance under this EULA (except for Customer’s payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortage of or inability to obtain energy, or supplies, war, terrorism, riot or acts of God (each a “Force Majeure”). In the event of a Force Majeure, the Party that is unable to perform or whose performance is delayed will promptly notify the other Party of the Force Majeure and will use its commercially reasonable efforts to resume performance, provided that if either Party is prevented or delayed from performing its obligations under this EULA due to a Force Majeure for a period of sixty (60) consecutive days or more, either Party may terminate this EULA or any impacted Purchase Order upon written notice to the other Party.

12.8 Entire Agreement. This EULA, including all exhibits (and any attachments or schedules thereto) and accepted Purchase Orders, constitutes the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Except as set forth in Section 12.9, this EULA may be modified or any rights under it waived only by a written document executed by both Parties.

12.9 Modification. The Parties hereby agree that this EULA contains the entire agreement between the Parties and this EULA shall not be modified, changed or amended in any way except through a written amendment signed by all the Parties hereto.

12.10 Third Parties. There are no third-party beneficiaries to this EULA.

12.11 Order of Precedence. In the event of conflict or inconsistency among the Documentation, this EULA and Purchase Order, the following descending order of precedence applies unless otherwise agreed between the Parties: (i) the Documentation, (ii) this EULA, and (c) the Purchase Order. This EULA supersedes any conflicting terms and conditions of any purchase order, acknowledgement or confirmation, or other any other document issued by End User regarding the Software. The Parties agree that any preprinted terms and conditions on a Quotation or Purchase Order from End User are null and void.