1.1 LICENSE GRANT. This End User License Agreement (this “Agreement”) between AppDynamics, Inc., a Delaware corporation with its principal place of business located at 303 Second Street, North Tower, 8th Floor, San Francisco, CA 94107 (“AppDynamics”) and the customer set forth in the Order Form (as defined below) (“End User”) is effective as of the date the initial Order Form is executed or the date this Agreement is referenced by the applicable purchase order (the “Effective Date”). This Agreement shall govern each order form, sales quotation, proposal, purchase order or other ordering document that references this Agreement (each an “Order Form”). The terms of each Order Form will incorporate the terms of this Agreement and will form a separate Agreement with respect to the Software and Services under that Order Form. Subject to the terms and conditions of this Agreement, AppDynamics hereby grants to End User, during the License Term (as defined below), a non-exclusive, non-transferable, non-sublicensable right and license to use the software-as-a-service and/or on-premise version of AppDynamics’ application intelligence software product, including one Controller, as designated in the Order Forms (the “Software”) for internal business purposes only for the quantity of units in the Order Form. AppDynamics Test & Dev Edition licenses shall only be used in test-only non-production environments. For purposes hereof, the “License Term” begins on the date AppDynamics delivers the Software license keys to End User and extends for the period specified in the applicable Order Form (unless earlier terminated in accordance with this Agreement). For the avoidance of doubt, End User’s affiliates (and employees thereof) shall not use the Software without AppDynamics’ prior written consent. Notwithstanding anything to the contrary herein, this Agreement does not supersede a signed agreement between AppDynamics and End User with respect to the Software.
1.2 RESTRICTIONS ON USE. Except as otherwise expressly provided in this Agreement, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to AppDynamics); (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any Third Party Software (as defined below) provided with the Software other than with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) publish the results of any benchmarking tests run on any Third Party Software (h) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1; (i) use the Software in support of any nuclear proliferation, chemical weapon, biological weapon or missile proliferation activity; (j) configure the Software to collect any (1) social security numbers or other government-issued identification numbers, (2) passwords or other authentication credentials, (3) protected health information, biometric data, genetic data, or payment/financial information, (4) any data relating to a person under the age of 13 years old, or (5) any other data that is subject to regulatory or contractual handling requirements (e.g., PCI, HIPAA, or state and federal data security laws) (collectively, “Prohibited Data”); or (k) use the Software to (1) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (b) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity, (2) interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (3) attempt to gain unauthorized access to the Software or AppDynamics' systems or networks.
1.3 EVALUATION USE. If End User accessed the Software pursuant to a no-fee or beta evaluation (“Evaluation Use”), then the License Term is for the period enabled by the license key for the Software provided by AppDynamics. AppDynamics shall have the right to downgrade, limit or otherwise modify the Software provided for Evaluation Use at any time without notice, and no warranty, indemnity, Maintenance or Support obligations of AppDynamics will apply to Evaluation Use. End User may use the number and type of licenses indicated by AppDynamics in writing prior to End User downloading or accessing the Software, which will be enabled by End User’s specific license key. AppDynamics has the right to immediately revoke and terminate any Evaluation Use at any time. End User represents and warrants that: (i) End User has not previously evaluated the Software, and (ii) End User will not attempt to, by any means, evaluate the Software again without payment. End User agrees that breach of this provision or this Agreement may subject End User to monetary penalties, including payment of all applicable fees as though the Software were licensed for payment. End User agrees to provide feedback related to the Software as reasonably requested by AppDynamics. End User grants to AppDynamics, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose. Evaluation Use is not a guarantee of future product features and should not be relied upon in making any purchasing decisions.
1.4 UNAUTHORIZED USE. End User shall notify AppDynamics promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.
1.5 MAINTENANCE AND SUPPORT. “Support” is defined as AppDynamics' obligations to respond to support requests as described in Exhibit A (Enterprise Support). “Maintenance” means AppDynamics’ obligations related to error resolution, bug fixes and the provision of updates and upgrades made generally commercially available by AppDynamics in its sole discretion, all as described in Exhibit A. Subject to End User’s payment of the fees set forth in the applicable Order Form(s), AppDynamics will (a) provide Maintenance and Support for the Software, and (b) solely if End User has purchased access to the software-as-a-service version of the Software, make the Software available to End User in accordance with Exhibit B (Availability and Security). For time-limited licenses for the Software (as set forth in an Order Form, “Subscription Licenses”), the fees for Maintenance and Support are included in the fees for the Software. For perpetual licenses, (i) AppDynamics shall invoice End User the applicable fees for Maintenance and Support (“Maintenance and Support Fees”) upon execution of the Order Form, and (ii) subject to payment of the Maintenance and Support Fees, AppDynamics will provide Support for the Maintenance and Support period set forth in the Order Form, as it may be renewed (the “Maintenance and Support Term”). If Maintenance and Support terminates with respect to any perpetual licenses, and End User is in good standing under this Agreement, then End User may reinstate Maintenance and Support on payment of the cumulative Maintenance and Support Fees applicable for the period during which Maintenance and Support lapsed, plus Maintenance and Support Fees for the reinstated Maintenance and Support Term. Notwithstanding anything herein to the contrary, if End User receives Support from an authorized partner of AppDynamics (“Partner”), then the support terms agreed upon by End User and such Partner shall govern in lieu of those set forth in Exhibit A, and AppDynamics shall have no support obligations to End User.
1.6 SERVICES. Subject to the terms hereof (including payment of any applicable fees set forth in the Order Form), AppDynamics shall use commercially reasonable efforts to provide the training, enablement and/or other services described in an Order Form (or statement of work referencing this Agreement), if any (“Services”). All Services will be rendered on a time and materials basis. AppDynamics will not exceed the total time purchased without prior written approval from End User. If the Services purchased have been consumed, AppDynamics will stop work until additional Services have been purchased. If End User elects not to purchase additional Services, then the Services will be deemed complete. If not used, pre-purchased Services and expenses expire twelve (12) months after the date purchased (unless otherwise set forth in the applicable Order Form). End User agrees to provide reasonable cooperation and information as necessary to permit AppDynamics to perform the Services. End User will reimburse AppDynamics for travel and expenses (at cost) incurred in connection with the Services (if any) by the Invoice Due Date (as defined below). Services will be performed on business days (a business day means Monday through Friday, excluding national holidays, during working hours, in the location where the Services are delivered). Saturday work, and hours worked during the week that exceed the local working hours in a week, will be charged at the agreed rate x 1.5. Services performed on Sundays or national holidays will be charged at 2 x the agreed rate. If End User cancels or delays any scheduled Services less than ten (10) business days before the start date of such Services, then AppDynamics will deduct from End User's account (or End User will pay for) the amount of Services that were scheduled in any of the ten (10) business days following the date of cancellation (or notification of the delay, as applicable), and End User will fully reimburse AppDynamics for any reasonable travel and expenses incurred by AppDynamics for such Services (and for any Services rescheduled by End User) for which AppDynamics is unable to obtain a refund. During the License Term (for Subscription Licenses) or during the Maintenance and Support Term (for perpetual licenses), and in each case for a period of twelve (12) months thereafter, without AppDynamics’ prior written approval, End User will not solicit for employment or consultancy any AppDynamics’ employees who participated in the performance of Services.