Rev. 20191022 1 CONFIDENTIAL INFORMATION MASTER SUBSCRIPTION AND SERVICES AGREEMENT PLEASE READ THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT BEFORE PURCHASING OR USING THE PRODUCTS OR SERVICES. BY USING OR PURCHASING THE PRODUCTS OR SERVICES, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE PRODUCTS OR SERVICES. This Master Subscription and Services Agreement is between Nginx Software, Inc. (" Nginx"), with its principal place of business at 795 Folsom Street, 6 th Floor, San Francisco, CA 94107, and the purchaser or user of Nginx's Products or Services ("Customer"). The effective date of this Agreement ("Effective Date") is the date that Customer first uses Nginx's Products or Services or agrees to these terms by entering into an Order Form. Capitalized terms have the meanings set forth in the sections in which they are used and in Section 9 below. 1. Agreement. The End User License Agreement (“EULA”) applicable to the Software and other Products provided by Nginx, the Nginx Support Services Addendum, the Order Form, and any other addendums or documents incorporated herein by reference shall form an integral part of this Agreement. In the event of any conflict between the Agreement and any purchase order, statement of work, or other document, the Agreement shall control. The following are attached hereto and otherwise incorporated herein by reference. • END USER LICENSE AGREEMENT at https://nginx.com/mss-agreement • NGINX SUPPORT SERVICES ADDENDUM at http://nginx.com/legal/support-services-addendum/ Any referenced document at a URL listed above shall be the document version current as of the Effective Date. 2. Products and Services. Nginx shall provide the Products and Services to Customer for use during the Term of each applicable Subscription as set forth in an Order Form. Customer’s use of the Products is subject to the terms of EULA and the terms and conditions of this Agreement. All Products shall be provided in a manner consistent with the documentation and warranties set forth in the Agreement. Professional Services shall be set forth on a separate statement of work. 3. Fees and Payment. Customer agrees to pay Nginx the fees for the products and services as stated on the applicable Order Form. (“Fees”) Unless otherwise set forth in the applicable Order Form, Fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Payments are nonrefundable and shall be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Nginx may charge interest at one percent (1%) per month on the unpaid balance. If Customer fails to pay Fees in accordance with this Section, Nginx may suspend fulfilling its obligations under this Agreement until such payment is received by Nginx. 4. Taxes. Customer shall pay any sales tax, value added tax, or similar tax arising from the purchase of the Products and Services as applicable, excluding taxes on Nginx’s net income. If any applicable law requires Customer to withhold amounts from any payments to Nginx under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Nginx with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Nginx receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Nginx would have received and retained absent the required deduction or withholding. 5. Term and Termination. 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated as set forth in this Agreement (“Term”). Either party may terminate this Agreement upon notice in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of receipt of written notice. Each Subscription shall begin on the date Customer purchases the Subscription by entering into an applicable Order Form and shall continue during the time Customer has paid the initial Subscription Fees (“Initial Term”), unless terminated earlier in accordance with this
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Rev. 20191022 1 CONFIDENTIAL INFORMATION
MASTER SUBSCRIPTION AND SERVICES AGREEMENT
PLEASE READ THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT BEFORE PURCHASING OR USING THE PRODUCTS OR SERVICES. BY USING OR PURCHASING THE PRODUCTS OR SERVICES, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE PRODUCTS OR SERVICES.
This Master Subscription and Services Agreement is between Nginx Software, Inc. ("Nginx"), with its principal place of business at 795 Folsom Street, 6th Floor, San Francisco, CA 94107, and the purchaser or user of Nginx's Products or Services ("Customer"). The effective date of this Agreement ("Effective Date") is the date that Customer first uses Nginx's Products or Services or agrees to these terms by entering into an Order Form. Capitalized terms have the meanings set forth in the sections in which they are used and in Section 9 below.
1. Agreement. The End User License Agreement (“EULA”) applicable to the Software and other Products provided by Nginx, the Nginx Support Services Addendum, the Order Form, and any other addendums or documents incorporated herein by reference shall form an integral part of this Agreement. In the event of any conflict between the Agreement and any purchase order, statement of work, or other document, the Agreement shall control. The following are attached hereto and otherwise incorporated herein by reference.
• END USER LICENSE AGREEMENT at https://nginx.com/mss-agreement
• NGINX SUPPORT SERVICES ADDENDUM at http://nginx.com/legal/support-services-addendum/ Any referenced document at a URL listed above shall be the document version current as of the Effective Date. 2. Products and Services. Nginx shall provide the Products and Services to Customer for use during the Term of each applicable Subscription as set forth in an Order Form. Customer’s use of the Products is subject to the terms of EULA and the terms and conditions of this Agreement. All Products shall be provided in a manner consistent with the documentation and warranties set forth in the Agreement. Professional Services shall be set forth on a separate statement of work. 3. Fees and Payment. Customer agrees to pay Nginx the fees for the products and services as stated on the applicable Order Form. (“Fees”) Unless otherwise set forth in the applicable Order Form, Fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Payments are nonrefundable and shall be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Nginx may charge interest at one percent (1%) per month on the unpaid balance. If Customer fails to pay Fees in accordance with this Section, Nginx may suspend fulfilling its obligations under this Agreement until such payment is received by Nginx. 4. Taxes. Customer shall pay any sales tax, value added tax, or similar tax arising from the purchase of the Products and Services as applicable, excluding taxes on Nginx’s net income. If any applicable law requires Customer to withhold amounts from any payments to Nginx under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Nginx with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Nginx receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Nginx would have received and retained absent the required deduction or withholding. 5. Term and Termination. 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated as set forth in this Agreement (“Term”). Either party may terminate this Agreement upon notice in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of receipt of written notice. Each Subscription shall begin on the date Customer purchases the Subscription by entering into an applicable Order Form and shall continue during the time Customer has paid the initial Subscription Fees (“Initial Term”), unless terminated earlier in accordance with this
Section 5.1. Subscriptions shall automatically renew for additional terms of one (1) year each (each a “Renewal Term”) unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The applicable licenses granted in Section 2 of this Agreement automatically terminate upon the termination of the underlying Subscription or this Agreement. Upon the expiration or termination of the underlying Subscription or this Agreement, Customer must de-install and destroy the Products, all associated Documentation and Confidential Information and certify such de-installation and destruction in writing to Nginx. 5.2 Survival. Sections 1, 2, 6, 7, 8.6, 8.7 and any other Section which, by its nature are meant to survive termination, shall survive the expiration or termination of this Agreement. 6. Audit. During the Term and for one (1) year following termination or expiration of this Agreement (but no more than once in a calendar year), Nginx and its auditors may inspect Customer’s records relating to its reproduction and use of the Products and Deliverables for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with Nginx and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount. If an underpayment of more than ten percent (10%) for the period audited is discovered, Customer shall promptly reimburse Nginx for the cost of the audit. 7. Confidentiality. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the Receiving Party shall (i) hold the Confidential Information of the Disclosing Party in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall ensure that such employees and contractors comply with the provisions of this Section. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure to the Receiving Party becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party prompt notice thereof if the Receiving Party is legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Nginx, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Subscriptions and Services performed under this Agreement. 8. General. 8.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement which does not include the use of the Products or Services in violation of the terms of this Agreement. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Products and Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. 8.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. 8.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
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8.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). 8.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Nginx and Customer and do not create any right in favor of any third party. 8.6 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Washington except as set forth in Section 17 of the EULA. 8.7 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department. 8.8 Assignment. Except as may be otherwise set forth herein, neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Nginx, its successors and assignees, may assign its rights or delegate its obligations, in whole or in part, without such consent and upon prior written notice to the Customer, to any of Nginx’s Affiliates, or (b) an entity that acquires all or substantially all of the business or assets of Nginx, its successors or assignees, whether by merger, reorganization, acquisition, sale, or otherwise. The parties further agree that all rights and obligations of Nginx Software, Inc. under this Agreement shall be automatically assigned effective January 1, 2020 to F5 Networks, Inc. Any purported assignment or delegation in violation of this section shall be null and void. 9. Definitions. “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Nginx or Customer, as applicable. For purposes of this definition, the term "control" means the direct or indirect power to direct or cause the direction of the management and policies of the applicable party, whether through the ownership of voting securities, by contract, or otherwise. “Confidential Information” means any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by one party to the other party under this Agreement in connection with the transactions contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. “Disclosing Party” means the party to this Agreement disclosing Confidential Information to the other party. “Documentation” means the electronic user and administrative manuals contained within the Products, at nginx.com, or provided to Customer by Nginx with the Updates. "Order Form" is an order form entered into by Nginx and Customer for Subscriptions and Professional Services. “Products” means the products licensed by Nginx to Customer as listed on the applicable Order Form and any Updates to such Products provided to Customer under this Agreement. “Professional Services” mean the consulting and training services provided by Nginx under this Agreement. “Receiving Party” means the party to this Agreement receiving Confidential Information from the other party. "Services" means collectively the Support Services and the Professional Services. "Subscription" means the term license to the Products and Support Services during such term as described in the applicable Order Form. “Support Services” mean the maintenance and support services provided by Nginx under this Agreement. “Update” means a Major Version, Minor Version or Maintenance Version of the Products or ModSecurity Module made available by Nginx as part of the Support Services. Major Version means a later version of the Products or ModSecurity Module identified by a change in the first digit to the left of the decimal point ((X).yy-zz); Minor Version means a later version of the Products or ModSecurity Module identified by a change in the digit(s) to the right of the decimal point (x.(YY)-zz); and Maintenance Version means a later version of the Products or ModSecurity Module identified by a change in the digits to the right of the dash sign (x.yy-(ZZ)).
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EXHIBIT A END USER LICENSE AGREEMENT
IMPORTANT – READ BEFORE INSTALLING OR OPERATING THIS PRODUCT
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, HAVING INSTALLED, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT. 1. Scope. This End User License Agreement (“License”) applies to the software product (“Software”) you have licensed from us whether on a stand-alone basis or as part of our hardware (“F5 Hardware”). All references to “F5,” “we” or “us” in this License will be deemed to be a reference to the applicable F5 entity as follows: (a) for purchases of F5 branded products (i) if your primary place of business is located in the European Economic Area, the Middle East or Africa (“EMEA”), the F5 entity is F5 Networks Ltd.; (ii) if your primary place of business is located in the Asia-Pacific region (“APAC”), the F5 entity is F5 Networks Singapore Pte Ltd; and (iii) if your primary place of business is located in a region outside of EMEA or APAC, the F5 entity is F5 Networks, Inc. and (b) for purchases of Nginx branded products (i) if your primary place of business is located in EMEA, the F5 entity is Nginx International Limited and (ii) if your primary place of business is located in a region outside of EMEA, the F5 entity is Nginx Software, Inc. This License is a legal agreement between us and the single entity that has acquired the Software from us under these terms and conditions (“you”). 2. License Grant. (a) Subject to the terms of this License, we grant to you a non-exclusive, non-transferable license to use the Software in object code form for your internal business purposes during the term for which you have paid the required license fees. Other than as specifically described herein, no right or license is granted to any of our trademarks, patents, copyrights, trade secrets or other intellectual property rights and we retain all rights not granted herein. The Software incorporates certain third-party software, which we use subject to licenses from the respective owners (“Licensors”). (b) The Software is licensed to you on either a subscription or perpetual basis in accordance with the terms of this Section 2(b): (i) All Software licensed under our Nginx product line (“Nginx Software”) is licensed to you on a subscription basis for the subscription term set forth in the applicable purchase order or quote (“Initial Subscription Term”). Upon expiration of your Initial Subscription Term, your subscription shall automatically renew for additional one (1) year terms unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term, or unless earlier terminated in accordance with Section 12. Notwithstanding anything to the contrary herein, Nginx Software is not available on a perpetual basis. (ii) The license for all non-Nginx Software (“F5 Software”) is licensed to you on either a perpetual or subscription basis as further set forth in a separate agreement or an addendum hereto. (c) You may use the user manuals, technical manuals, and any other materials provided by us, in printed or electronic form, that describe the installation, operation, use or technical specifications of the Software (“Documentation”) solely in support of the licensed use of the Software in accordance with this License. (d) You understand that by using the Software or F5 Hardware (collectively, “Product”), you consent and agree to the collection and use of certain information about your Product, including, but not limited to, hardware serial number, appliance part number, disk configuration, memory amount, as well as periodic updates for software, databases, etc. You further consent and agree that the Product may collect, use, transmit to us, process and maintain information related to the Product for purposes of providing the Software and any features therein. Information collected by the Product and transmitted to us may also include technical or diagnostic information related to your use that may be used by us to support, improve and enhance our products and services. You may opt out of the collection and use of such information by configuring the Product to disable these features.
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3. Restrictions. (a) The Software, Documentation and the associated copyrights and other intellectual property rights are owned by F5 or its Licensors and are protected by law and international treaties. (b) You may install, use, access, display and run the Software only in the manner in which it has been licensed as indicated herein and in the applicable Documentation, quote or the license file for such Product or Software (collectively, “Sales Documentation”), including, but not limited to, any restrictions on the number of protected applications, number or type of licensed devices, number of authorized copies or instances, number of users, bandwidth, non-production use, database or location restrictions. We reserve the right to audit your use of the Software (or authorize third party auditors to conduct such an audit on our behalf) and to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to us. (c) Your use of the Software under this License may be limited to certain versions, as set forth in the applicable Sales Documentation. To the extent your Sales Documentation contains such limitations, your use of other versions or releases of the Software under this License is prohibited and shall be considered a material breach of this License. (d) For Software modules licensed as part of F5 Hardware, the Software is not transferable to other F5 Hardware or third-party hardware. For Software provided in stand-alone form (not embedded in as part of F5 Hardware), you may only install and use the Software for which you have a valid license key issued to you by F5 or an authorized sub-licensor, and only for the duration of the validity of such license key. The use of any hardware or software to pool resources or reduce the number of devices that directly access or use the Software (sometimes referred to as 'virtualization') will not reduce the number of license keys required. You must have a separate license key for each instance of the Software. F5 employs locking mechanisms in the Software in order to ensure that your use of the Software complies with this License. You agree that you will not attempt to circumvent any of the locking mechanisms and restrictions put in place or to have others do so on your behalf. (e) Certain portions of the Software include third-party software modules, which may include, but are not limited to, MySQL licensed from MySQL AB or JavaTM licensed from Oracle America, Inc., and are subject to additional limitations imposed by those Licensors (“Restricted Third-Party Software”). You may reference the applicable Product’s Open Source Notices and Software Acknowledgments document at http://askf5.com. Certain portions of the Software may also include geographical or other data (“Geographical Data”). You agree that you will only use such Restricted Third-Party Software or Geographical Data in conjunction with the Product and not as standalone software. You will not (i) copy the Restricted Third-Party Software or Geographical Data onto any public or distributed network; (ii) use the Restricted Third-Party Software or Geographical Data separately to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; (iii) use the Restricted Third-Party Software or Geographical Data as a general server, as a standalone application or with applications other than the Software under this license; (iv) change any proprietary rights notices which appear in the Restricted Third-Party Software or Geographical Data; or (v) modify the Restricted Third-Party Software or Geographical Data. (f) Except as otherwise expressly permitted in this License, you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party: (i) copy (except to make one archival copy for backup and disaster recover purposes), modify or create derivative works of the Software or Documentation; (ii) sell, sub-license, rent, grant usage rights or transfer the Software, Data or any associated Documentation to any third-party not authorized by F5; (iii) disassemble, reverse compile or reverse engineer the Software or any Data incorporated in the Software or encourage others to do so except as required by law for interoperability purposes, and then only after you have given us an opportunity to provide information or software necessary to resolve such interoperability issues; (iv) defeat, circumvent or disable any reporting mechanism, copy protection mechanism or mechanism in the Software used to limit license duration or access to non-licensed functionality or capacity. Violation of any of the restrictions contained in this Section 3 is a material breach of this License.
4. Export Control. Our standard Products incorporate cryptographic software. You agree to comply with the Export Administration Act, the Export Controls Act, all regulations promulgated under such Acts, and all other U.S. government regulations relating to the export of technical data and equipment and products produced therefrom which are applicable to you. You further agree not to disclose or transmit to us any information that requires that access to such information be limited to U.S. Nationals or personnel based in a certain country or region. In countries other than the U.S., you agree to comply with the local regulations regarding importing, exporting or using cryptographic software. You agree that you will not export or re-export the Product to any country, person, or entity subject to U.S. export restrictions. Specifically, you agree not to export or re-export the Product: (a) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the Product back to such country; (b) to any person or entity who you knows or have reason to know will utilize the Product or portion thereof in the design, development or production of nuclear, chemical or biological weapons; or (c) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government, including but not limited to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By installing or using the Product, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list. 5. Limited Warranty. (a) We warrant that for a period of ninety (90) days from the date of shipment (the “Warranty Period”): (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software substantially conforms to the Documentation. Except for the foregoing, the Software is provided “AS IS”. In no event do we warrant that the Software is error free, that it will operate with any software or hardware other than that provided by us or specified in the Documentation, or that the Software will satisfy your own specific requirements. (b) Remedy. Your exclusive remedy under this limited warranty is that we, at our option, will repair or replace any Software that fails during the Warranty Period at no cost to you. During the Warranty Period, we will replace defective media or Documentation or, at our option, undertake reasonable efforts to modify the Software to correct any substantial non-conformance with the Documentation. (c) Restrictions. The foregoing limited warranties extend only to the original licensee, and do not apply if the Software (i) has been altered, except by us or a representative designated by us or in accordance with our instructions, (ii) has not been installed, operated, repaired, or maintained in accordance with our instructions, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident or (iv) has been operated outside of the environmental specifications for the Software. Our limited software warranty does not apply to software corrections or upgrades. 6. Infringement Indemnity. (a) We will, at our expense, defend any suit brought against you by an unaffiliated third party based upon a claim that the Software infringes a valid patent, trademark or copyright or misappropriates a third-party trade secret. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act, except in case of claims arising under any claim governed by the laws of any jurisdiction outside the United States, in which case “misappropriation” will mean intentionally unlawful use and “trade secret” will mean “undisclosed information” as specified in Article 39.2 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. We will pay costs and damages (including reasonable attorneys’ fees) finally awarded against you, or agreed in settlement by us, directly attributable to any such claim and will bear all reasonable costs of the investigation and defense of the claim, but only on condition that (i) you notify us in writing of such claim promptly following receipt of notice, (ii) we have sole control of the defense and settlement negotiations, (iii) you provide us all information and communications received by you concerning such claim, and (iv) you provide reasonable assistance to us when requested. You will have the right to participate in the defense with counsel of your own choosing at your expense; provided that such representation does not interfere with our right to control the defense. (b) We will have the right, at our option and expense, to (i) obtain for you rights to use the Software, (ii) replace or modify the Software so that it becomes non-infringing or (iii) accept return of the Software, upon which the applicable
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license(s) will terminate, in exchange for a credit not to exceed the purchase price paid by you for such Software based upon a three (3) year straight line depreciation. The foregoing, subject to the restrictions set forth in Section 6(c) below, states our exclusive liability to you concerning infringement. (c) Restrictions. We will have no liability for any claim of infringement based on (i) use of a superseded release of the Software where the subsequent release is equally available to you at no cost and is non-infringing; (ii) use of the Software in combination with equipment or software not supplied by us (including Open Source Components) where the Software would not itself be infringing; (iii) use of the Software in an application or environment not described in the Documentation; (iv) software or technology not developed by us; (iv) Software that has been altered or modified in any way by anyone other than us or our authorized agents; (v) your continued use of the Software after we notify you to discontinue use due to such a claim; or (vi) sale or use of the Software (1) in any country into which the U.S. has embargoed or restricted the export of goods or services or (2) to or by any person or entity who you know or have reason to know will utilize the Software or portion thereof in the design, development or production of nuclear, chemical or biological weapons; or (3) to or by any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government including but not limited to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. 7. Notice to U.S. Government End Users. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this License may be incorporated, you may provide to a government end user or, if this License is direct, government end user will acquire, the Software and Documentation with only those rights set forth in this License. Use of either the Software or Documentation or both constitutes agreement by the government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation” and constitutes acceptance of the rights and restrictions herein. 8. DISCLAIMER; LIMITATION OF REMEDY. EXCEPT FOR THE WARRANTIES SPECIFICALLY DESCRIBED HEREIN, WE AND OUR LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, ARISING, WITH RESPECT TO THE SOFTWARE, PRODUCTS, DATA, SPECIFICATIONS, OR DOCUMENTATION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, WARRANTY OF NON-INFRINGEMENT OR TITLE AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE DATA INCLUDED IN THE SOFTWARE AND THE DATA IS PROVIDED “AS IS”. WE HAVE NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS LICENSE. THE COLLECTIVE LIABILITY OF US AND OUR LICENSORS (A) FOR PERPETUAL LICENSED SOFTWARE LICENSED UNDER THIS LICENSE WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE AND (B) FOR SOFTWARE OTHER THAN PERPETUAL LICENSED SOFTWARE WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. WE AND OUR LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR OTHER GOODS OR SERVICES FURNISHED TO YOU BY US, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, OUR LICENSORS WILL NOT HAVE ANY LIABILITY FOR ANY DIRECT DAMAGES OF ANY KIND UNDER THIS LICENSE. THE LIMITATIONS CONTAINED IN THIS SECTION WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION. 9. Non-Production Use Software. If you purchase a Product or license Software designated as “non-production,” “non-commercial,” “lab” or “development” in the applicable Sales Documentation for such Product or Software (“Non-
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Production Software”), you may use the Non-Production Software to conduct testing and development in your non-production environment only and not to manage or protect data traffic or applications in the ordinary course of your business. You agree that any use of Non-Production Software in violation of the preceding sentence is a material breach of this License. 10. Evaluation Software. If the Software is “Evaluation Software,” notwithstanding any other terms to the contrary in this License, you may use the Software only for your internal demonstration, test or evaluation purposes and not in a production environment. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS LICENSE, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, FOR EVALUATION SOFTWARE AND IT IS PROVIDED ON AN “AS IS” BASIS. EVALUATION SOFTWARE HAS A NON-PERPETUAL TIME LIMITED LICENSE THAT WILL “TIME-OUT” AND DISABLE THE SOFTWARE UPON EXPIRATION OF THE EVALUATION PERIOD. You agree that you will not attempt to defeat or circumvent any duration mechanism for Evaluation Software. You also agree that you will not use any Evaluation Software beyond the prescribed license duration. 11. Software Hosted in a Public Cloud. If the Software is used in a cloud or similar environment, you may only use the Software in object code form in the cloud provider’s (“Cloud Provider”) environment. You agree to not transfer any part of the Software out of the Cloud Provider’s environment. You may use multiple instances of the same Software in object code format in the Cloud Provider’s environment, paying for each instance separately. IN ADDITION TO THE DISCLAIMERS SET FORTH IN SECTION 8 ABOVE, AND NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS LICENSE OR ANY REPRESENTATIONS OR WARRANTIES OF THE APPLICABLE CLOUD OR SIMILAR ENVIRONMENT, SOFTWARE PROVIDED BY A CLOUD PROVIDER AND NOT OBTAINED FROM US IS PROVIDED “AS IS” AND POSSIBLY WITH FAULTS. 12. Termination. The license granted in Section 2 will automatically terminate if you fail to comply with any of the terms and conditions set forth herein. Upon termination or expiration of the license, you will destroy the Software and Documentation and all copies or portions thereof. 13. ModSecurity Software. In connection with your Nginx Software license, you may have the option to license ModSecurity software (“ModSecurity Module”) as an optional add-on. The ModSecurity Module is not “Software” as such term is defined herein. If applicable, the ModSecurity Module will be provided by us with the applicable Nginx Software; provided that the licensing of the ModSecurity Module is subject to the terms set forth at http://www.apache.org/licenses/LICENSE-2.0 and is not subject to the terms of this License. Therefore, we will have no liability with respect to the licensing and use of the ModSecurity Module, including, without limitation, any warranty or indemnification obligations. Notwithstanding the foregoing, we will provide support for the ModSecurity Module under the terms of this License. Notwithstanding any contrary provision in this License, support for the ModSecurity software will be provided as described in Section 14(a). 14. Support. Maintenance and support under this License is dependent upon the type of software licensed hereunder, as further described in this Section 14: (a) Support for Nginx Software. During your Subscription Term, we will provide maintenance and support for all Nginx Software. Our maintenance and support obligations for the Nginx Software shall be subject to the support policies available at http://nginx.com/legal/support-services-addendum/. (b) Support for All F5 Software. Maintenance and support of all F5 Software is not provided under this License and must be purchased separately subject to our support policies available at http://www.f5.com/about/guidelines-policies/ and http://askf5.com. If you have purchased maintenance and support for a Product, the term Software under this License will include, subject to Section 3(c), all updates and corrections we make publicly available at no additional cost (collectively “Updates”); provided that you are otherwise entitled to access and use such Updates pursuant to the applicable maintenance and support contract. You may only use the Updates on Products for which you are the original end user or other Products which include F5 Software to which you hold a valid license, and only on equipment for which you have purchased maintenance and support. Permissible upgrades for virtual edition licenses are further described at http://support.f5.com/kb/en-us/solutions/public/15000/600/sol15643.html.
15. Professional Services. Professional and consulting services are not included as part of maintenance and support and are provided under a separate agreement or statement of work. 16. Data Collection & Sharing. Use of certain Software may include our access to your end users’ personal information (a) solely as required for our provision of such Software in accordance the applicable Documentation and (b) in accordance with our Privacy Policy (available at https://www.f5.com/company/policies/privacy-notice). You consent and agree to such access and further agree that you are solely responsible for notifying your end users of the same and ensuring your privacy policy contemplates the sharing of such end-user information with third parties. Use of Nginx Software and website are subject to the Nginx Privacy Policy (available at https://www.nginx.com/privacy-policy/ ). 17. Miscellaneous. This License will be governed and construed in accordance with the following governing law (“Governing Law”), depending on the applicable licensing F5 entity, without regard to its choice of law rules:
Entity: Governing Law: Venue:
F5 Networks Singapore Pte Ltd The laws of Singapore Singapore F5 Networks Ltd. Nginx International Limited
The laws of England and Wales London, England
F5 Networks, Inc. Nginx Software, Inc.
The laws of the State of Washington Seattle, Washington
The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws. Any dispute arising under this License shall be settled by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules. The place of arbitration shall be the applicable Venue. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the applicable Governing Law. The foregoing alternative dispute resolution provisions will not apply to claims or actions related to the infringement, misappropriation or violation of our intellectual property rights or those of our Licensors and such actions may be brought in any court of competent jurisdiction. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in meaning to the original as possible. This License constitutes the entire agreement between the parties with regard to its subject matter. No modification will be binding unless in writing and signed by the parties; provided, however, that an F5 entity may assign or otherwise transfer this License to another F5 entity without such a writing. 18. Open Source Components. Certain portions of the Software contain open source software ("Open Source Components") that are licensed under the terms of the applicable open source licenses. The terms of the applicable licenses of the Open Source Components take precedence over the terms of this License, only to the extent the terms of this License are not permitted by the applicable licenses of the Open Source Components. A listing of the Open Source Components can be found in the Documentation. To the extent the terms of the applicable licenses of the Open Source Components require us to make available to you the corresponding source code and/or modifications (the "Open Source Code"), you may obtain a copy of the applicable Open Source Code from its current location at https://downloads.f5.com, or by sending us a written request with your name and address to: F5 Networks, Inc., Attn: Office of the CTO, 801 Fifth Avenue, Seattle, WA 98104. All requests should identify: the Open Source Code that you are requesting, the applicable F5 product (and any available version information) that you have licensed from us in connection with the requested Open Source Code, your email contact information, and the postal address for delivery of the requested Open Source Code to you. This offer to obtain a copy of the Open Source Code is valid for three (3) years from the date you have licensed the Software.
During the applicable Subscription term, Nginx will provide Support Services for: (a) the Products licensed by Customer from Nginx on the terms and conditions set forth below; and (b) the ModSecurity Module if applicable under the terms set forth in Section 1.5 (ModSecurity Module) of the Agreement and the relevant portions of this Exhibit B as specified in Section 2.6 (Support Services for ModSecurity Module) below. Nginx will provide Support Services only for the Products licensed from Nginx by Customer and if applicable only for the ModSecurity Module as licensed under the applicable licensing terms referenced in Section 1.5 (ModSecurity Module) of the Agreement and later Updates of the same Products or ModSecurity Module.
1. Support Services
Nginx will provide the following Support Services:
1.1 Update Releases Provided. Nginx shall make available to Customer all Updates made generally available to Subscription customers by Nginx.
1.2 Proactive Security Notifications. Nginx shall proactively make available to Customer all internal security bulletins.
1.3 Update Distribution. Updates will be provided for download from the Nginx customer support portal. Updated Documentation will be provided with such new Updates. Customer acknowledges and agrees that Nginx shall have no responsibility to install or configure any Products or ModSecurity Module as part of the Support Services.
1.4 Documentation or Configuration Issues Resolved. Nginx will help Customer resolve doubts with Documentation where observed Product behavior is different from Documentation, Documentation isn’t clear or consistent, or other minor Documentation issues occur.
1.5 Binary Package Issues Resolved. Nginx will assist Customer in resolving warnings on binary launch, system library conflicts or other issues with the binary Nginx packages. Customer acknowledges and agrees that Nginx shall have no responsibility to directly participate in installation or configuration of any Products as part of the Support Services. Nginx shall also not be responsible for resolving any other compatibility issues unrelated to the Nginx binary package.
1.6 Error Correction. Following receipt of notice of an Error from a Named Contact, Nginx shall make commercially reasonable efforts to: (a) respond to Customer within the corresponding SLA time (see below); (b) reproduce the issue; and (c) repair any Errors or provide a workaround.
The following table summarizes SLA parameters for Basic, Professional and Enterprise levels of support1:
SLA Basic Professional Enterprise
Support hours 9x5 24x72 24x72
Number of incidents Unlimited Unlimited Unlimited
Initial response time 8 hours 2 hours 30 Minutes
Answers about Documentation 24 hours 8 hours 2 hours
1 Basic, Professional and Enterprise Level SLAs are not applicable to the Developer Edition Subscriptions. 2 24x7 for High and Medium Severity incidents only
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Email and Web Support Yes Yes Yes
Phone support No Yes Yes
Software Updates Major, Minor and
Maintenance Versions
Major, Minor and
Maintenance Versions
Major, Minor and Maintenance Versions
Hot bug fixes No Yes Yes
Support for 3rd party modules No Yes Yes
2. Support Obligations
2.1 Classification for Prioritization. Nginx shall initially classify Errors in accordance with the severity breakdown set forth below and based on the circumstances described by Customer. Nginx will use commercially reasonable efforts to provide the services described below for each type of Error observed.
Severity Level
Description
1 High Severity
Prevents Customer from continuing use of Product(s), or critically impacts core function of the Products or Customer’s environment. Causes the Products to experience downtime, or performance of the Products is severely degraded due in whole or in part to an Error. No workaround known to Customer. Nginx will use continuous efforts during the support hours shown above to provide a resolution for any Severity Level 1 Error.
2 Medium Severity
Prevents Customer from continuing use of a function of the Products, but does not affect the performance or functionality of the Customer’s environment in its entirety. Impacts Customer’s ability to use the Products, the severity of which is significant and may be repetitive in nature. Nginx will use commercially reasonable efforts during its normal hours of operation to provide a resolution for any Severity 2 Errors.
3 Low Severity
The reported Error is minor, not inhibiting any of the necessary functionality of the Products. Error negligibly impacts Customer’s ability to use the Products, and Products remain functional. This category may include enhancement requests, common how-to questions, and any Product issues with a viable workaround. As soon as it is commercially practicable, Nginx will use reasonable efforts during its normal hours of operation to provide a resolution for any Severity 3 Error.
4 Request for Information
Includes minor, cosmetic, or documentation-related issues, and enhancement requests that are not time-sensitive. There is no impact on the Product’s existing features, functionality, performance or stability. Nginx will provide solutions in its sole discretion.
2.2 Progress Reporting. Nginx shall issue a trouble ticket number for each Error reported by the Named Contact to Nginx. Each Error will be tracked by trouble ticket number and will include all associated symptoms and activities. Named Contact shall reference the ticket number in all communications associated with an Error. Customer and Nginx shall keep each other’s support personnel
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informed of the progress when resolving any Error. The trouble ticket shall be closed by the Nginx customer support team upon acknowledgment by the Customer that the Error is resolved. If the Customer neither acknowledges, nor contests in writing the resolution of the Error within five (5) business days following an e-mail or other written notification by the Nginx customer support team to the Customer and the Nginx customer support team considers the Error resolved, the trouble ticket shall be closed.
2.3 Customer Support Operations. Nginx will provide Support Services via e-mail, or telephone help line (if applicable) during the term of the applicable Subscription to Named Contacts. Customer should first consult the online support portal as it provides a knowledge base and answers to frequently asked questions. The contact information for the Nginx customer support team is:
2.4 Conditions for Providing Support Services. Nginx’s obligation to provide Support Services is conditioned upon the following: (a) Customer makes reasonable efforts to correct the Error after consulting with Nginx; (b) Customer provides Nginx with sufficient information and resources to correct the Error either at Nginx’s customer support center or via remote access to Customer’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the Error; (c) Customer promptly installs all Updates; and (d) Customer procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Products and ModSecurity Module, if applicable.
2.5 Exclusions. The following are excluded from Nginx’s Support Services obligations: (a) Products or ModSecurity Module that are used on or in conjunction with hardware or software other than as specified in the applicable Documentation; (b) altered or modified Products or ModSecurity Module; (c) defects in the Products or ModSecurity Module due to accident, hardware malfunction, abuse or improper use; (d) any version of the Products or ModSecurity Module for which Support Services have been discontinued by Nginx; (e) any Error caused by ModSecurity Module not licensed through Nginx; however, this exception will not apply to an Error caused by ModSecurity Module if Customer has purchased the optional add-on for such ModSecurity Module; (f) evaluation software or other software provided by Nginx at no charge; (g) open source versions of Nginx products; and (h) any products sold separately by Nginx.
2.6 Support Services for ModSecurity Module. Support Services for ModSecurity Module are limited to: (a) the provision of Updates as described in Sections 1.1 (Update Releases Provided) and 1.3 (Update Distribution) above, and (b) commercially reasonable assistance for installation, initial configuration, fault-finding and troubleshooting. The provisions of Section 2.2 through 2.5 of this Exhibit B also apply to Support Services for the ModSecurity Module. All provisions of this Exhibit B not specifically referenced in this Section 2.6 (Support Services for ModSecurity Module) do not apply to Support Services for ModSecurity Module.
