Rubrik End User License Agreement

IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE OR THE DOCUMENTATION IN ANY WAY AS PERMITTED BY THIS END USER LICENSE AGREEMENT (“AGREEMENT”) OR BY CLICKING ON AN “ACCEPT” BUTTON, YOU (INDIVIDUALLY AND AS THE AUTHORIZED REPRESENTATIVE OF A COMPANY OR LEGAL ENTITY) AGREE TO ALL THE TERMS OF THIS AGREEMENT WITH RUBRIK, INC., ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY REFERRED TO AS "RUBRIK") REGARDING USE OF THE SOFTWARE AND THE DOCUMENTATION.

YOUR USE OF THE SOFTWARE AND DOCUMENATION IS CONDITIONED EXPRESSLY ON YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE OR THE DOCUMENTATION AND DO NOT CLICK “ACCEPT” BUTTON. THE INSTALLATION PROCESS WILL NOT CONTINUE AND YOU WILL NOT BE ABLE TO USE THE SOFTWARE OR DOCUMENTATION. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE THAT YOU ACCEPT THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" BUTTON.

1. Definitions.

“Documentation” means the Rubrik documentation made available in hard copy or in electronic form shipped with the Software excluding advertising or marketing materials.

“Software” means the Rubrik Cloud Data Management Software or RCDM and Software Add-Ons licensed for use (i) with Rubrik or Rubrik approved third party hardware (“Hardware”) or (ii) on a standalone basis. “RCDM” means Rubrik’s standard embedded firmware and software. “Software Add-Ons” meaning software offering enhanced features and functionality to the RCDM including, for example, CloudOn, CloudOut and Edge. Software includes all Updates, Upgrades, copies and alterations, modifications and derivatives thereof. Software is licensed only in object code. Software excludes third party software and open source software provided with the Software. Third party software and open source software are governed by separate license terms which are available on request and governed by applicable provision of this Agreement. You agree to comply with the terms of the third party and open source software.

“Updates” mean patch releases, “bug” fixes, and software and firmware maintenance updates for the Software for the Software to perform materially in accordance with the Documentation.

“Upgrades” mean major new features or upgrades included in new software products which may be made available under the current Support Services Plan (as defined in the Policy) and for which there may be a fee or purchase price charged.

2. License.

(a) Grant to Software and Documentation. During the Term (as defined below), subject to this Agreement, the Documentation and the payment of all fees, Rubrik grants you a limited, non-sublicensable, non-transferable (except as expressly permitted), non-exclusive license to use the Software only with the Hardware or on a standalone basis only for your internal business purposes and to use the Documentation in conjunction with your authorized use of the Software. All Software is provided in object code only.

(b) Perpetual or Term License. Software is licensed on a: (i) Perpetual basis meaning your right of use of the Software continues in perpetuity subject to Section 8 for the payment of a one-time fee (“Perpetual Software License”); or (ii) Term basis meaning you have the right of use of the Software for the finite period for which the applicable fees are paid.

(c) Perpetual Software License Transfer to New Hardware. Software subject to a Perpetual Software License may be transferred to new or replacement Hardware in accordance with a license transfer program Rubrik offers from time to time in its sole discretion or as Rubrik first authorized in writing.

(d) Proprietary Rights.

i. Software and Documentation are licensed to you and not sold. As between the parties, title, ownership rights, and intellectual property rights in and to the Software (including third party and open source software) and Documentation, in any form or format, along with all copies remain exclusively in Rubrik and its licensors. All suggestions, input, comments and feedback you provide to Rubrik with respect to the Hardware or Software (in any form) are Rubrik’s property and deemed Rubrik’s Confidential Information (as defined below). You hereby assign to Rubrik and its licensors any interest you may have in the same. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. Rubrik’s licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. This Agreement does not grant you any rights not expressly granted herein.

ii. All trademarks used in connection with the Software and Documentation are owned by Rubrik, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder.

iii. The Software contains automated reporting routines that generate and report to Rubrik metrics and statistics regarding the performance of the Software and Hardware (collectively, “Product”) to report problems and issues with the Product and provide information back to Rubrik (“Report”). Rubrik owns all right, title and interest in and to any data and information it so collects (and you hereby makes all assignments necessary to accomplish such ownership).

(e) Certain Restrictions. Except as expressly and unambiguously permitted by this Agreement (or third party or open source software license), you will not, nor permit anyone else to, directly or indirectly:

i. Use any feature, function or capability without first purchasing the applicable license even if such feature, function or capability is enabled without a key;

ii. Copy, modify, encumber or distribute the Software or Documentation;

iii. Reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly permitted by applicable local law, and then only to the extent so permitted) or create any derivative works including, without limitation, customization, translation or localization;

iv. Sell, license, sublicense, rent, lease, lend, transfer or otherwise provide access to Software or use the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party (including as part of a managed service offering);

v. Remove or obscure any proprietary notices on the Software or Documentation;

vi. Use the Software for performing comparisons or other “benchmarking” activities, either alone or in connection with any hardware or software; or

vii. Use the Software or Documentation for any purpose and in any manner not expressly and unambiguously authorized herein (including, without limitation, for any purpose competitive with Rubrik).

(e) Acceptance and Support Services Policy. The Software and Documentation are deemed accepted upon download. Defects are addressed in Rubrik’s Product Warranty and Support Services Policy (the “Policy”) as your sole and exclusive remedy. Rubrik does not provide any support or maintenance for the Software (including but not limited to Updates or Upgrades) under this Agreement. Support and maintenance are provided under and pursuant to the Policy. “Defects” mean a failure of the Software to conform substantially to the Documentation at the time of delivery which is reproducible and otherwise covered under the Policy.

3. Fees.

(a) Payments. All amounts for license fees due and owing to Rubrik’s authorized distributor or channel partner (along with all taxes, tariffs, and duties) are payable to and in accordance with the requirements of the authorized channel partner or distributor. If payable directly to Rubrik, license fees are payable in advance, within 30 days of the date of the invoice and, once paid, are non-refundable and not subject to set-off or deduction.

(b) Audit. During the Term and for a minimum of three (3) years thereafter, Rubrik or an independent third party auditor selected by Rubrik have the right to reasonably inspect and audit your facilities, systems and relevant books and records to confirm your compliance with this Agreement. If an audit discloses you have installed, accessed, used, or otherwise permitted use and access to the Software in a manner that is not permitted expressly by this Agreement, Rubrik may terminate this Agreement immediately. In any event, you agree to reimburse Rubrik immediately for any unpaid license fees (if applicable) and all reasonable expenses related to such audit. Rubrik may disclose the results of the audit to its suppliers, licensors and otherwise for its business purposes.

4. Confidentiality. You acknowledge that the Software including its features, functionality and capability, and all Documentation and other related information are confidential to Rubrik, its suppliers and licensors (“Confidential Information”) except to the extent information is: (a) already in your possession or received by you without restriction; (b) independently developed by you without use or reference to Rubrik’s Confidential Information; (c) publicly disclosed by Rubrik; or, (d) approved for release in writing by Rubrik. Confidential Information may be disclosed in response to a subpoena or order of a court or governmental agency provided, however, that, if not otherwise prohibited, you will notice Rubrik promptly of such subpoena or order to enable Rubrik to seek a protective order or otherwise prevent or restrict such disclosure. You agree, at all times, to protect and preserve in strict confidence all such Confidential Information and use or disclose Confidential Information only to your employees or contractors for purposes consistent with this Agreement who have a need to know and who are under a similar obligation of confidentiality. You will notify Rubrik promptly of any unauthorized disclosure or use of Confidential Information, remain liable and responsible for any unauthorized use or disclosure of Confidential Information and will undertake all reasonably required remedial action at Rubrik’s request.

5. Disclaimers. EXCEPT FOR THE LIMITED PRODUCT WARRANTY STATED IN THE POLICY, RUBRIK, ITS SUPPLIERS AND LICENSORS PROVIDE THE SOFTWARE AND DOCUMENTATION ON AN “AS-IS” BASIS AND DO NOT MAKE (AND HAS NOT AUTHORIZED ANYONE TO MAKE) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, THAT SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER RUBRIK PRODUCTS, OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, RELIABLE, ENTIRELY SECURE, VIRUS FREE OR ERROR FREE, OR WILL MEET YOUR REQUIREMENTS, AS TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR DOCUMENTATION. YOU ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURANCIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. you are responsible to backup all of YOUR data and systems. rubrik AND ITS LICENSORS ARE not responsible or liable for loss, corruption OR DESTRUCTION of data.

THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. RUBRIK, ITS SUPPLIERS AND LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY WARRANTIES EXPRESS OR IMPLIED PROVIDED BY A DISTRIBUTOR, CHANNEL PARTNER OR OTHER THIRD PARTY IN ADDITION TO OR DIFFERENT FROM THOSE EXPRESSLY SET FORTH HEREIN.

6. Indemnity.

(a) By Rubrik. Rubrik agrees to defend or settle, at Rubrik’s option, a third party claim or cause of action against you alleging that the Software infringes or misappropriates a U.S. patent or copyright of such third party (“Claim”) and to pay damages finally awarded against you or to pay settlement amounts directly resulting from such Claim, provided Rubrik is promptly notified of such Claim, is given sole control of the defense and settlement of the Claim, you provide to Rubrik all reasonable assistance and you are not in material breach of this Agreement. Rubrik will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to any Software or portions or components thereof: (a) not supplied by Rubrik; (b) made in whole or in part in accordance with your specifications; (c) modified after delivery by Rubrik without Rubrik’s prior written authorization; (d) combined with other products, processes or materials where the alleged infringement relates to such combination; (e) if you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) used other than in strict conformity with this Agreement and the Documentation. For all such claims, you agree to indemnify and hold harmless Rubrik and its officers, directors, employees, agents, successors and assigns against all damages, losses and expenses (including reasonable attorneys’ fees) arising from any third party action and to give Rubrik all reasonable information and assistance regarding such claim. If any Claim arises, Rubrik may, at its sole option and expense: (i) replace or modify the affected Software to make it non-infringing with no less material functionality; (ii) procure a license for your continued use of the affected Software; or, (iii) require you stop using the affected Software, terminate this Agreement and your rights hereunder. This Section 6 states Rubrik’s sole and exclusive obligations, and your sole and exclusive remedies, with respect to any claims of infringement or misappropriation of third party intellectual property rights of any kind.

7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WILL RUBRIK OR ITS SUPPLIERS, LICENSORS OR PARTNERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY OF THE FOLLOWING: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR LOSS OR CORRUPTION OF DATA OR THE COST OF PROCURING SUBSTITUTE SOFTWARE; OR (B) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE LICENSE FEES PAID FOR THE SOFTWARE FROM WHICH THE CAUSE OF ACTION AROSE IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE, OR, IF GREATER, ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS APPLY EVEN IF RUBRIK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS POLICY AND APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

8. Term and Termination. This Agreement continues until the end of the applicable license term designated by Rubrik or as otherwise terminated as stated in this Section (the “Term”). Notwithstanding, either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within fifteen (15) days (or five (5) days in the case of non-payment) of such party’s receipt of written notice describing the breach. You may terminate this Agreement at any time upon written notice to Rubrik. This Agreement terminates automatically in the event (i) you breach Section 2, 4 or 10 in addition to all other legal or equitable rights or remedies or (ii) of your insolvency, your admission in writing that you are unable to pay your debts as they come due, your assignment for the benefit of creditors or you otherwise become subject to receivership, bankruptcy or insolvency proceedings. Upon expiration or termination of this Agreement for any reason, the license granted hereunder will terminate and you will stop using the Software. You will destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software and documentation or undertake such actions as to ensure that the Software will not be used after the effective date of termination and so certify to Rubrik that such actions have occurred. Sections 2(d) and 3 through 11 survive expiration or termination of this Agreement for any reason.

9. Government Use. The Software provided under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise set forth in this Agreement, use, duplication, and disclosure by civilian agencies of the U.S. Government shall not exceed those minimum rights set forth in FAR 52.227-19(c) or successor regulations. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the software license terms contained in this Agreement, as stated in DFARS 227.7202 or successor regulations. U.S. Government rights shall apply only to the specific agency and program for which the Software is obtained.

10. Compliance and Export Controls. You will comply with all applicable laws and regulations, including, without limitation: (a) all privacy laws and regulations; (b) export laws and regulations, including the Export Administration Regulations, of the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury and to obtain any necessary license or other authorization to export, reexport, or transfer Proprietary Information or Rubrik’s Products (“Products”). Without limiting the foregoing, you agree you will not, and will not permit a third party, directly or indirectly, to export, re-export, divert, provide, disclose or transfer Confidential Information or the Software to Crimea, Cuba, Iran, North Korea, Sudan, or Syria, to the governments of these countries, wherever located, to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified List or OFAC’s Specially Designated Nationals List or List of Consolidated Sanctions as updated from time to time, to any end user with knowledge or reason to know that the Software or Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes or to any person with knowledge or reason to know that they will export, re-export, provide, or transfer the Software or Confidential Information other than in compliance with the foregoing restrictions, and (c) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all similar laws and regulations which prohibit offering any inducement, whether money or goods or services, to any government official, employee, candidate or party.

11. General. Rubrik is entitled to preliminary and permanent injunctive relief to enforce this Agreement without the need to post bond in addition to all other legal and equitable remedies. Written notice is effective when delivered or rejected at the address a party last notified the other party in writing. This Agreement is the complete agreement between the parties concerning the Software and Documentation, to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document), and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Rubrik to act with respect to a breach of this Agreement does not constitute a waiver and will not limit Rubrik’s rights with respect to such breach or any subsequent breaches. Except as expressly stated, this Agreement is personal to you and this Agreement and the Software and Documentation cannot be assigned or transferred for any reason whatsoever, without Rubrik’s prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Rubrik expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, and The U.N. Convention on Contracts for the International Sale of Goods shall not apply. The controlling language of this Agreement is English and all proceedings will be conducted in English. If you have received a translation into another language, it has been provided for your convenience only. Unless waived by Rubrik in a particular instance, the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Mateo County, California and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to an award of its costs and attorneys’ fees.