Teneros

Customer Service Agreement and EULA

This Customer Service Agreement (the “Agreement”) is entered into as of the date on which the Appliances (as defined herein) is shipped by Teneros to the Customer defined below (the “Effective Date”), by and between Teneros, Inc., having a principal place of business at 321 East Evelyn Avenue, Mountain View, CA 94041 (“Teneros”), and the entity purchasing the Appliances (hereinafter described as “Customer”).

1. Provisions of Service

Customer has purchased or licensed one ore more Teneros Application Continuity Appliances(s) (each, an “Appliances”, and collectively, the “Appliances”) by separate agreement for Customer’s internal use and desires to receive monitoring and support services (“Service”) from Teneros for such Appliances. Subject to the terms and conditions of this Agreement (including Customer’s payment of all applicable fees hereunder), Teneros shall provide the Service pursuant to the election of the following Service Programs (each, a “Service Program”) by Customer:

Appliances for which Customer has purchased a Service Program are eligible for Monitoring and Support under this Agreement and are hereinafter referred to as “Covered Appliances.” 

2. Term

This Agreement shall commence on the Effective Date and shall continue for the term of the applicable Service Program(s). Thereafter, the Agreement will automatically renew for additional one (1) year periods, unless either party provides written notice to the other party of its intent not to renew at least thirty (30) days prior to the anniversary of the Effective Date or unless the Agreement is otherwise terminated in accordance with the terms of this Agreement. Service to cover newly purchased Appliances or Covered Appliances moved from other locations will be added to this Agreement as such Appliances are purchased; additional fees may apply. Teneros will invoice Customer for the Service for such Appliances on a pro-rata basis for the balance of the year to the next anniversary of the Effective Date. Teneros will maintain a current list of all covered Appliances by Appliances identifier and location, and Customer agrees to assist Teneros by providing any and all information requested by Teneros for such purpose. Teneros will not be liable for providing Service in the event that Customer fails to provide accurate information to Teneros for such purpose.

3. Fees

3.1 Amount. In consideration of Teneros’ provision of the Service, Customer will pay Teneros the then-current annual Service contract fee as invoiced by Teneros.

3.2 Payment Terms. Teneros shall invoice Customer prior to any Service being rendered, and thereafter, annually no later than thirty (30) days prior to the anniversary of the Effective Date. Customer shall pay all fees within thirty (30) days following the date of invoice but in no event later than the anniversary of the Effective Date to ensure continuity of Service. Teneros reserves the right to impose a finance charge of 1% per month, or the highest legally permissible amount, whichever is less, on amounts unpaid by Customer when due.

3.3 Taxes. Customer shall be responsible for any applicable sales, use, or any value added or similar taxes payable with respect to provision of Service to Customer, or arising out of or in connection with this Agreement, other than payroll taxes and taxes imposed on Teneros’ income. Customer shall also be responsible for any applicable duties with respect to shipment of replacement parts.

3.4 Additional Services. Customer may request Teneros to perform tasks outside the Services described in this Agreement. Teneros may, at its sole option, agree to perform these services, at Teneros’ then-current T&M rate.

4. Relationship of the Parties

Teneros is an independent contractor and neither Teneros nor its personnel shall be deemed employees of Customer. Teneros reserves the right to determine the manner in which it performs the Service. Except as set forth in the description of the Service Programs, and subject to Customer’s normal business hours and security requirements (which are provided to Teneros in advance and in writing), Teneros shall be solely responsible for determining the times and locations at which Teneros performs Service. So long as Teneros’ performance of Service is not materially adversely affected, Teneros may replace or reassign Teneros personnel designated to perform Service.

5. Responsibilities of the Parties

5.1 Teneros’ Responsibilities. Teneros shall provide Service for such Service Program(s) as set forth in the applicable Appendix attached to this Agreement. Teneros may modify the Service Programs from time to time with reasonable notice to Customer.

5.2 Customer’s Responsibilities. Customer shall ensure that a reliable internet connection is maintained in order that monitoring and management activity by the Teneros Network Operations Center may continue uninterrupted. Failure to maintain this connectivity will preclude the Teneros Network Operations Center from providing monitoring, management and update services. Customer shall provide Teneros current information on Appliances identifier, serial numbers, location, and key contacts in each Customer location for the Covered Appliances when required. Customer shall also provide Teneros with access to Customer’s materials, systems, information, facilities and employees, including without limitation, remote access, as Teneros may reasonably require in order to provide the applicable Service.

5.3 Incorporation of End User License Agreement. The terms and conditions of the Teneros End User License Agreement, attached hereto as Appendix B, are incorporated herein by this reference.

6. Termination

In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice of the breach and the non-breaching party’s intention to terminate the Agreement. This Agreement shall automatically terminate thirty (30) days following such notice, unless the breaching party cures or makes substantial progress, in the non-breaching party’s reasonable opinion, in curing the breach before the expiration of the 30-day period.

7. Limitations on Service

7.1 Service Not Covered. Notwithstanding anything to the contrary in this Agreement, Service does not include the correction of, and Teneros will have no obligation, responsibility or liability with respect to, any errors, defects or other problems caused by or resulting from: (i) Customer’s failure to allow implementation of all Updates, as defined in Appendix A-1, made available to Customer by Teneros; (ii) changes or modifications by Customer or third parties to the operating system, network configuration or environment which adversely affect the Covered Appliances; (iii) any alterations or modifications of the Covered Appliances made by anyone other than Teneros; (iv) use of the Covered Appliances other than as specified in the applicable documentation or specifications; (v) the combination, use or interconnection of the Covered Appliances with other software or hardware not supplied or not approved by Teneros in writing; (vi) negligence, damage or misuse of the Covered Appliances; (vii) wiring, circuits, electrical conduits or devices external to the Covered Appliances; (vii) Customer’s failure to provide and continually maintain adequate electrical power, air conditioning and humidity controls in accordance with Covered Appliances specifications.

7.2 Limitations on Service. The Service to be provided under Appendix A-1 is limited to exercising commercially reasonable efforts to address problems that are demonstrable by Customer and reproducible by Teneros. Teneros makes no commitment, representation or guarantee regarding the amount of time it will take to diagnose or resolve a given problem once it is brought to Teneros’ attention. Teneros will have no obligation to correct all errors in the Covered Appliances. Customer agrees that only competent personnel will install or replace Field Replaceable Units (FRUs) as defined in Appendix A-2 and such installation or replacement will be in accordance with handling procedures specified by Teneros.   Customer agrees to use only spare parts provided by Teneros and that the installation of components not provided by Teneros may invalidate this Agreement.

8. Limited Warranties

8.1 Limited Warranty. Teneros warrants only to Customer that Teneros will deliver the applicable Service in a competent and professional manner. If Customer notifies Teneros within thirty (30) days following the provision of any Service that such Service is non-conforming, then Customer’s sole remedy and Teneros’ sole obligation for breach of the foregoing warranty shall be the re‑performance by Teneros of the non‑conforming Service in a conforming manner.

8.2 Limitations on Warranties. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 8, TENEROS, ITS SUPPLIERS AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR IMPLIED WARRANTY ARISING OUT OF THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

9. Limitation of Liability

NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, TENEROS SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO TENEROS HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; (II) FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA; (III)  FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.

10. Confidential Information

10.1 Confidential Information. Each party understands that the other possesses and will possess Confidential Information that is important to its business and may disclose information in the course of this Agreement that is considered to be trade secrets, highly confidential, or sensitive. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, information about trade secrets, computer programs, designs, technology, proprietary software, algorithms, circuits, mask works, layouts, ideas, know-how, processes, formulas, compositions, data, techniques, improvements, inventions (whether patentable or not), works of authorship, business and product development plans, the salaries and terms of compensation of employees, customers and other information concerning the party’s actual or anticipated business, research or development, or which is received in confidence from any other person. Each party agrees not to divulge, directly or indirectly, Confidential Information to any person or entity for any purpose

10.2 Restrictions on Use. At all times during and for three (3) years after the term of this Agreement, each party agrees to keep all Confidential Information in strictest confidence and trust and to take all reasonable precautions to protect against its disclosure or misuse. Neither party will disclose any Confidential Information except to employees or contractors with a need to know for purposes of delivering the Service. The parties shall not, however, be required to treat as confidential any Confidential Information which: (i) is in the public domain by reason of prior publication not directly or indirectly resulting from any act or omission of the recipient or its employees or subcontractors, or (ii) was already properly known to the recipient (other than in connection with this Agreement) without restriction on use or disclosure at the time of disclosure under this Agreement. All materials containing Confidential Information, together with all copies of the foregoing, shall be returned to the disclosing party upon request and upon termination of this Agreement.

11. Miscellaneous

11.1 Amendments and Waivers. Any term of this Agreement may be amended or waived only upon the parties’ mutual written consent.

11.2 Sole Agreement. This Agreement, including the Appendices hereto, constitutes the sole agreement of the parties and supersedes all oral agreements, prior writings and other printed terms with respect to the subject matter hereof.

11.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by an industry recognized and reputable delivery service (such as Federal Express or UPS), or forty‑eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such party’s address as set forth above or as subsequently modified by written notice.

11.4 Choice of Law. This Agreement shall be governed by the laws of the State of California, as if made within California between two residents thereof, and without regard to conflicts of law principles that would require the application of the laws of another jurisdiction. Performance of this Agreement will be deemed to be made in California. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT SHALL NOT APPLY TO THIS EULA. THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE EXPRESSLY DISCLAIMED.

11.5 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision shall be excluded from this Agreement, the balance of the Agreement shall be interpreted as if such provision were so excluded and the balance of the Agreement shall be enforceable in accordance with its terms.

11.6 Force Majeure. Teneros is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including, without limitation, acts of God or of any third party, government action, compliance with laws or regulations, shortages, strikes, lockouts or industrial disputes, or the unavailability of deliveries, supplies, hardware or software. If the performance of either Teneros or Customer is interfered with for reasons beyond its reasonable control (except for Customer’s obligation to pay amounts due Teneros), the affected party, upon prompt written notice to the other party, will be excused from performance to the extent of the interference. The affected party must take all reasonable steps to remove the causes of non-performance and resume performance as soon as possible.

11.7 Assignment. Customer shall not assign or transfer its rights or delegate its obligations under this Agreement without Teneros’ prior written approval. Teneros may freely assign and transfer this Agreement or any rights or obligations hereunder in whole or in part. Any attempted assignment or transfer in derogation of the foregoing shall be null and void.

11.8 Construction. The section headings used in this Agreement are for the purpose of convenience only and shall have no legal import. As used herein, the term “including” means “including without limitation”.

Appendix A-1

Always-On IT™ – Monitoring and Management Service

The Always-On IT™ – Monitoring and Management Service program provides 24 hours a day, 7 days a week monitoring and management  services for Covered Appliances. The Teneros Network Operations Center will provide monitoring service for Covered Appliances. Actions may require remote access to the Covered Appliances and/or direct communication with Customer via phone, email or other media.

Teneros will monitor Customer communication with Teneros, track technical problems involving the Covered Appliances, evaluate problems reported by Customer involving the Covered Appliances, and provide status reports to Customer on problem resolution via the Teneros Web portal. Full details of monitoring, problem reporting, Return Material Authorization (“RMA”) and other service processes are detailed in the Teneros Customer Service Manual, available at www.teneros.com

Updates

The Teneros Network Operations Center will manage patches and software updates (collectively, “Updates”) for Covered Appliances. No user intervention is required in this process since code updates will be pulled down automatically and deployed during user definable maintenance windows.

Updates may include, but are not restricted to, updates to anti-virus definitions, and updates to operating system and application software. Teneros will make available incremental improvements and additions to the application software from time to time. Teneros reserves the right to charge incrementally for major feature enhancements.

Technical Support

Teneros will provide technical support through its Customer Satisfaction Team which will respond to technical inquiries via the web, email and phone.

Teneros will:

• Provide Customer with access to Release Notes via email or the Teneros website. “Release Notes” are materials containing available information on pending updates, new product releases, application techniques and workarounds to problems.
• Provide Customer with assistance in the event that a Covered Appliances experiences performance issues.
• Use reasonable efforts to resolve and/or provide workarounds for problems with Covered Appliances that will correct issues that affect the substantial ability of the Appliances to perform the tasks it is designed to perform as set forth in the applicable documentation.
• Respond to critical issues as soon as commercially practicable, with response targets of fifteen (15) minutes following a report being made.

Hours of Service

Teneros will provide monitoring and management services 24 hours a day, 7 days a week, 365 days a year.

Customer Satisfaction Team – Access information:
Available 24 hours a day, 7 days a week.

Web Service:  www.teneros.com -  Click on “Service” link.

Send e-mail queries to: support@teneros.com

Phone Service:
From the U.S. and Canada call +1-88-TENEROS-1 (1-888-363-7671)
From international locations call +1-650-641-7400.

Full details of monitoring, problem reporting, RMA and other service processes are detailed in the Teneros Customer Service Manual, available at www.teneros.com.

Appendix A-2

Always Available Hardware Replacement – Advance Exchange Hardware Replacement

Customers electing the Always Available Hardware Replacement program will receive the Always-On IT™ - Monitoring and Management Service program, detailed in Appendix A-1, plus the following additional services:

In the event that a hardware failure is detected, Teneros will pro-actively provide a replacement spare part to the Customer. Hardware replacement will typically be a Field Replaceable Unit (“FRU”) or in extreme instances, a complete system.

Hardware is replaced on an advance exchange basis. Teneros will use commercially reasonable efforts to ensure that a replacement unit be made available by the next business day, provided that parts requests are received before 16:30 PST Monday through Friday for deliveries in the United States.

For shipments to destinations outside the continental U.S., deliveries will be made on a commercially reasonable basis and may be subject to delays caused by import processes.

Replacement parts will be new or equivalent-to-new. Customer is responsible for ensuring that defective parts are returned to Teneros in appropriate packaging to prevent damage in transit.

FRUs will consist of: replaceable disc drives, power supply units (“PSUs”), and, in exceptional circumstances, complete systems.

The Customer Satisfaction Team – Access information

Web Service: www.teneros.com – Click on “Support” link.

Send e-mail queries to: Support@teneros.com

Phone Service:
From the U.S. and Canada call  +1-88-TENEROS-1 (1-888-363-7671)
From international locations call +1-650-641-7400.

Full details of monitoring, problem reporting, RMA and other service processes are detailed in the Teneros Customer Service Manual, available at www.teneros.com

Appendix B

Teneros End User License Agreement

This End User License Agreement ("EULA") is between Teneros, Inc. ("Teneros") and the entity ("Licensee", “Customer” or "you") which has received the Teneros Application Continuity Appliances™ (the "Product"). This Agreement governs Licensee's operation of the Product. Teneros is willing to grant Licensee the following license to use the Teneros-proprietary software that is embedded or incorporated in the Product (the "Software") according to this Agreement only on the condition that Licensee accept all terms in this EULA.

1. License.

Subject to Licensee’s full compliance with all the terms and conditions of this EULA, Teneros grants Licensee a non-exclusive, non-transferable, non-sublicenseable license to use the Software in executable code only and solely as incorporated in the Product. The Software is licensed, not sold, to Licensee for use only under the terms of this EULA, and Teneros reserves all rights not expressly granted to Licensee.

2. Restrictions.

Licensee acknowledges that the internal structure, composition and organization of the Product and the Software constitute valuable trade secrets of Teneros. Accordingly, Licensee agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Product, or Software; (b) distribute, sublicense, lease, rent, loan, time share or otherwise transfer the Product or Software to any third party; (c) reverse engineer the Product, decompile, disassemble, or otherwise attempt to derive the source code for the Software or otherwise attempt to discover the internal structure, organization or composition of the Product, except to the extent such activity is permitted by applicable law notwithstanding this restriction. There are no implied licenses granted hereunder, and any right that is not expressly granted hereunder is reserved by Teneros.

3. Proprietary Rights.

As between Teneros and Licensee, title to the Product, Software and the documentation accompanying the Product (the "Documentation") shall remain solely with Teneros. Licensee must not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Teneros or its suppliers on or within the Product. Except as expressly set forth herein, no rights in or to the Product, the Software, including but not limited to any intellectual property rights or proprietary rights of Teneros or its suppliers, are granted hereunder. Licensee agrees to purchase and/or license (as applicable) any third party hardware and software products required in order to operate the Product. Some hardware and software products must be purchased and/or installed prior to installing the Product. By way of example, but not limitation, if Licensee has not purchased a Microsoft® Exchange license through Teneros or Teneros' authorized channel, then Licensee agrees to identify to Teneros the specific Microsoft® Exchange license(s) that Licensee will apply to the Product upon failover of Licensee's Microsoft® Exchange server, and Licensee agrees to comply with all license terms and conditions applicable to such license.

4. Termination.

This EULA will terminate immediately if Licensee breaches any of its terms or conditions. Upon such termination, Licensee agrees to promptly power off the Product, and destroy all Documentation and all copies thereof, and certify in writing that Licensee has done so. Except for the right to use the Software as expressly permitted hereunder, the terms of this EULA survive termination. Without limiting the foregoing, Teneros may exercise all available remedies if Licensee has breached this EULA, including obtaining immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

5. Limited Software Warranty.

For a period of ninety (90) days from the date of tender of Product by Teneros from FOB point designated by Teneros (the "Software Warranty Period"), Teneros warrants that the Software, when used in accordance with the instructions in the Documentation, will perform substantially in accordance with its applicable specifications. This warranty covers only problems that Licensee reports and Teneros verifies during the Software Warranty Period. This warranty does not cover Software that has been misused, damaged, altered, neglected, or subjected to unauthorized repair or installation. Teneros will, at its own expense and as its sole and exclusive obligation and Licensee's sole and exclusive remedy for any breach of the foregoing warranty, use commercially reasonable efforts to repair or replace any nonconforming Software that Licensee reports in writing during the Software Warranty Period. Alternatively, if Teneros determines that it is unable to repair or replace such Software, Teneros will refund to Licensee the amount actually paid by Licensee to Teneros for the applicable Product. Any such repair or replacement provided to Licensee will not extend the original Software Warranty Period. This limited warranty only covers repairs at Teneros' designated facilities and does not include labor, transportation or other expenses to repair or reinstall warranted Products at a Licensee's premises.

6. Disclaimer.

THE EXPRESS WARRANTIES IN SECTION 5 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND DOCUMENTATION, AND TENEROS, ITS SUPPLIERS AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH LICENSEE'S QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, TENEROS SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE SOFTWARE, TENEROS' EFFORTS, OR ANY SOFTWARE, HARDWARE OR SYSTEM WITH WHICH THE TENEROS SOFTWARE IS USED WILL MEET REQUIREMENTS, FULFILL ANY PARTICULAR PURPOSES OR NEEDS, OR THAT THE OPERATION OF THE TENEROS PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THESE TERMS AND CONDITIONS AND THAT NO WARRANTIES ARE MADE BY ANY OF TENEROS' SUPPLIERS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 5, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY TENEROS, ITS SUPPLIERS, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES.

7. Limitation of Liability.

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL TENEROS, OR ITS SUBSIDIARIES, AFFILIATES, OR SUPPLIERS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF TENEROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN NO EVENT SHALL TENEROS' LIABILITY EXCEED AN AMOUNT EQUAL TO THE PURCHASE PRICE OF THE PRODUCT PAID BY LICENSEE THAT IS THE SUBJECT OF A CLAIM. ANY CLAIM ARISING OUT OF OR RELATING TO THIS EULA MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS EULA.

8. Export.

Licensee agrees and certifies that neither the Product, nor the Software, nor any technical data received from Teneros, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Product has been rightfully obtained by Licensee outside the United States, Licensee agree that Licensee will not re-export the Product nor any technical data received from Teneros, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software. Licensee agrees to comply fully with all laws and regulations of the United States and other countries to assure that neither the Product nor the Software is exported, directly or indirectly, in violation of any applicable export control laws or used for any purposes prohibited by such export control laws. The Product may not be exported or re-exported to or into any country to which the U.S. has embargoed goods. By using the Software and Product, Licensee represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country. License will indemnify and hold Teneros harmless from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach of Licensee’s obligations under this paragraph. Licensee’s obligations under this paragraph will survive the expiration or termination of this EULA.

9. High Risk Uses.

The Product and Software are not designed, manufactured or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation or in any other applications or activities in which failure of the Product or Software may pose the risk of environmental harm or physical injury or death to humans ("Dangerous Applications"). Teneros specifically disclaims any liabilities or warranties for any use of the Product or Software by Licensee for Dangerous Applications.

10. U.S. Government End Users.

The Software is provided with RESTRICTED RIGHTS. The Software is a commercial software product, licensed on the open market, and was developed entirely at private expense and without government funds. Any use, modification, reproduction, release, performance, display, or disclosure of the Software by any government entity shall be governed solely by the terms of this License EULA and shall be prohibited except to the extent expressly provided under this License EULA. No license to the Software is granted to any government entity requiring different terms. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227.7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software. Restricted Rights clause at 48 CFR 52.227.19, as applicable. Manufacturer is Teneros, Inc., 321 East Evelyn Avenue, Mountain View, CA 94041.

11. Governing Law and Venue.

This EULA shall be governed by the laws of the State of California without regard to conflicts of law principles that would require the application of the laws of another jurisdiction. Performance of this EULA will be deemed to be made in California. Any action or proceeding arising from or relating to this EULA must be brought in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT SHALL NOT APPLY TO THIS EULA.

12. Data Collection. 

In the process of providing Teneros’ standard technical support for the Product, Teneros may collect certain information regarding Licensee’s computing environment, which may include information regarding the Exchange server and/or Active Directory server. This information is generally used for troubleshooting purposes; however, Teneros may from time to time use such information for product marketing purposes. Licensee agrees that Teneros has permission to collect the information remotely in the troubleshooting process or in response to an alert received from the Product, and to use such information for the purposes described. For the avoidance of doubt, such information will not include any content of email messages transmitted within Licensee’s computing environment. Any information obtained by Teneros through this process will be maintained under conditions of strict confidentiality. Licensee should immediately notify Teneros in the event that Licensee does not wish to grant (or wishes to revoke) the permission granted in this section; provided, however, that Licensee acknowledges that either not granting or revoking such permission will impair Teneros’ ability to fully support the Product.

13. General.

Licensee may not assign or transfer Licensee’s rights or delegate Licensee’s obligations under this EULA without Teneros' prior written approval. Teneros may freely assign and transfer this EULA or any of its rights or obligations hereunder. Any attempted assignment or transfer in derogation of the foregoing shall be null and void. Teneros does not waive any of its rights under this license by delaying to exercise its right, or exercising only part of its rights at any time. If a court of competent jurisdiction rules that a provision of this license is unenforceable, that provision will be limited so that the rest of the license remains enforceable. This EULA is the complete and exclusive statement of the EULA between Teneros and Licensee relating to the licenses granted hereunder. This EULA supersedes any proposal or prior EULA, oral or written, and any other communications between Teneros and Licensee in relation to the subject matter hereof. This EULA shall not be modified except in writing. Teneros' suppliers, including but not limited to Sophos Plc, SupportSoft, Inc., and Microsoft® Corporation are express third party beneficiaries of this EULA, with the right to enforce the terms hereof relating to each supplier's intellectual property rights, directly against Licensee. By accepting this EULA, Licensee hereby consents to Teneros' use of Licensee's name in Teneros' sales reports and customer lists.

THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

Teneros and the Teneros logo are trademarks of Teneros, Inc. in the United States and other countries; all other trademarks are owned by their respective owners.