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.