End User License Agreement for NGINX Plus - Microsoft Azure NGINX License Agreement Nginx Software, Inc. v2014-04-14 NGINX LICENSE AGREEMENT This Nginx License Agreement ('Agreement') is a legal agreement between you (the 'End User') and Nginx Software, Inc. ('NGINX') for the NGINX software (the 'Software') licensed to End User hereunder and supplied to End User. The term Software includes any APIs, software modules, and any associated materials and 'online' or electronic documentation. This Agreement applies to End User's use of the Software but it shall be superseded by any signed agreement between End User and NGINX concerning the Software. 1. Software license Notwithstanding any reference to 'sale' or 'purchase', the Software is licensed, not sold. Subject to the terms and conditions of this Agreement, NGINX grants End User a nonIexclusive, nonItransferable right to access and use the Software as part of the web hosting services for End User's internal use ('Authorized Use') in object form in the products, versions, and number of installed instances as purchased from NGINX. 2. Limitations 2.1. Restrictions. End User shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, the Software to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Software except to the limited extent, if any, that applicable law permits such acts notwithstanding any contractual prohibitions, provided, however, before End User exercises any rights that End User believes to be entitled to based on mandatory law, End User shall provide NGINX with thirty (30) days prior written notice and provide all reasonably requested information to allow NGINX to assess End User's claim and, at NGINX's sole discretion, to provide alternatives that reduce any adverse impact on NGINX's intellectual property or other rights; (c) allow access or permit use of the Software by any third party except authorized thirdIparty contractors solely to provide services to End User, provided that End User shall be liable for all acts and omissions of such authorized thirdIparty contractors; (d) modify or create derivative works based upon the Software; (e) disclose the results of any benchmark test of the Software to any third party; (f) change any proprietary rights notices which appear in the Software; or (g) circumvent the license keys embedded within the Software. 2.2. Software Transfer. Upon written consent from NGINX, which will not be unreasonably withheld, End User may permanently transfer all of its rights under this Agreement; provided that the recipient agrees to the terms of this Agreement. 2.3. High Risk Activities. The Software is not intended for use in hazardous environments requiring failI safe performance (such as, without limitation, the planning, construction, maintenance, control, or direct operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, medical device and life support machines, or weapon systems) in which the failure of the Software could lead to death, personal injury or physical and environmental damage ('High Risk Activities'). Accordingly, this Agreement excludes any High Risk Activities and End User agrees not to use the Software in connection with High Risk Activities. 3. Ownership The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. NGINX owns all right, title and interest in the copyrights, patents and all other intellectual property rights in and to the Software and any accompanying printed materials, and all derivative works thereof. 4. Open source programs The Software may include individual open source software components, each of which has its own copyright and its own applicable license conditions. The open source software components are licensed to End User under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the related documentation or other materials accompanying the Software. 5. Trademarks The mark 'NGINX' is trademark of NGINX. NGINX's failure to list a trademark in this Section shall not constitute a waiver of any trademark rights. All other trademarks in the Software not owned by NGINX are the property of their respective owners. 6. Disclaimer and Warranty 6.1. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND AND NGINX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF A COURSE OF CONDUCT OR COURSE OF DEALING, INCLUDING ALL WARRANTIES OF TITLE, PERFORMANCE, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONIINFRINGEMENT AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. NGINX MAKES NO WARRANTY REGARDING NONIINTERRUPTION OF USE. NO ORAL OR WRITTEN STATEMENT PROVIDED BY NGINX SHALL CREATE ANY WARRANTY. 6.2. LIMITATION OF LIABILITY. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY END USER. NGINX SHALL NOT HAVE ANY LIABILITY TO END USER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFIT OR OPPORTUNITY, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF NGINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. NGINX'S MAXIMUM AGGREGATE LIABILITY RELATING TO THIS AGREEMENT OR THE SOFTWARE SHALL NOT EXCEED THE AMOUNT PAID BY END USER FOR THE SOFTWARE. 6.3. ALLOCATION. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN NGINX AND END USER. NGINX'S LICENSING FEES FOR THE SOFTWARE REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE. 6.4. Limitation. Because some jurisdictions do not allow certain disclaimers, exclusions or limitations of warranties, damages or liability, the above disclaimers, exclusions or limitations may not apply to End User and, therefore, shall apply only to the maximum extent allowed under applicable law. 7. Term This Agreement is effective until terminated. End User may terminate the Agreement at any time by returning or destroying all copies of the Software and related documentation. End User's rights under this Agreement will terminate automatically if End User fails to comply with the Agreement. Sections 2I8 shall survive such termination. 8. Miscellaneous 8.1. Governing Law. This Agreement shall be governed by the laws of the State of New York, without reference to the principles of conflicts of law. The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any litigation related to this Agreement shall be brought in the state or federal courts located in New York, New York, and only in those courts and each party irrevocably waives any objections to such venue. Notwithstanding anything to the contrary herein, NGINX shall be entitled to seek injunctive or other equitable relief, wherever NGINX deems appropriate in any jurisdiction, in order to preserve or enforce NGINX's rights for any breach or threatened breach of this Agreement. 8.2. Severability. Every term, condition or provision of this Agreement is severable from the others. If a court or an arbitrator of competent jurisdiction holds any term, condition or provision of this Agreement to be invalid, unenforceable or illegal in whole or in part for any reason, the validity and enforceability of the remaining terms, conditions or provisions, or portions of them, will not be affected. 8.3. Confidentiality. Except as expressly allowed by this Agreement, End User will not use or disclose any Software or related technology, idea, algorithm or information ('Confidential Information') except to the extent End User can document that it is generally available for use and disclosure by the public without charge or license. End User shall hold the Confidential Information in trust and confidence and avoid the disclosure or release thereof 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. End User may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that End User gives NGINX reasonable written notice to allow NGINX to seek a protective order or other appropriate remedy, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed. End User recognizes and agrees that there is no adequate remedy at law for a breach of this Section, that such a breach would irreparably harm NGINX and that NGINX is entitled to equitable relief (without need to post a bond) with respect to any such breach or potential breach in addition to any other remedies. 8.4. Indemnity. End User shall defend, indemnify and hold harmless NGINX, and its officers, directors, employees and agents (the 'NGINX Indemnitees'), from and against all suits, claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs) that the NGINX Indemnitees may suffer or incur in connection with: (i) any third party claim arising from End User's breach of this Agreement; and (ii) any infringement by End User of NGINX's intellectual property rights in the Software. 8.5. Entire Agreement and Waiver. The Agreement is the sole, final and entire agreement between the parties with respect to the subject matter hereof, may only be amended in writing signed by both NGINX License parties. A failure or delay in enforcing any provisions, exercising any option or requiring performance, be construed to be a waiver by NGINX. 8.6. Marketing. NGINX may use End User's name and company logo on its customer list and web site, and link to End User's web site. 8.7. Independent Contractor. The relationship of the parties is that of independent contractors. Neither party will be deemed to be the legal representative of the other nor will it have any right to bind the other party to any contract or commitment. This Agreement does not, and will not, be construed to create an employerIemployee, agency, joint venture or partnership relationship between the parties. Each party agrees to assume complete responsibility for its own employees regarding federal or state laws, including employers' liability and tax withholding, worker's compensation, social security, unemployment insurance, and OSHA requirements. 8.8. Notices. All notices must be in writing and will be effective three (3) days after the date sent to each party's corporate headquarters. 8.9. Audit. During the term of this Agreement and for one (1) year following termination or expiration (but no more than once in a calendar year), NGINX and its auditors may inspect End User's records relating to its reproduction and use of the Software for the purposes of verifying End User's compliance with this Agreement. End User shall cooperate fully with NGINX and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, End User shall promptly pay such amount and End User shall reimburse NGINX for the cost of the audit. 8.10. Government Regulation. End User acknowledges that the Software is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. End User may not export or reIexport the Software except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. End User shall not and shall not allow any thirdIparty to remove or export from the United States or allow the export or reIexport of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terroristIsupporting country; (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or reIexport is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or reIexport without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. The Software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and related documentation by the U.S. Government shall be governed solely by the terms of this Agreement.