Mattermost, Inc. Software and Services License Agreement

IMPORTANT – READ CAREFULLY. THIS MATTERMOST, INC. SOFTWARE AND SERVICES LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN THE RELATIONSHIP BETWEEN YOU (“LICENSEE” OR “YOU”) AND MATTERMOST, INC. (“MATTERMOST” OR “LICENSOR”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO ANY COMPANY PRODUCT YOU DOWNLOAD OR ACCESS.  IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD CLICK ON CANCEL AT THE BOTTOM OF THIS PAGE AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE PRODUCT. DO NOT CLICK “I ACCEPT” UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED “I ACCEPT”, YOU WILL BE GRANTED ACCESS TO THE PRODUCT, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).

This Agreement, including the General Terms and Conditions and the Additional Terms and Conditions applicable to Licensee’s specific orders hereunder, describes the legal framework under which License may license Products and Services from Licensor.  All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Subscription or Product shall mean the sale or purchase of a license to such Product. Terms not otherwise defined in the text of this Agreement shall have the meanings ascribed to them in Exhibit A.

General Terms and Conditions

1. Orders; Subscriptions; Delivery; Renewals; Support.  

1.1 During the Term of this Agreement and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Products and Support by the parties agreeing to Orders that reference this Agreement.

1.2 If Subscriptions are sold per-user, then the number of Registered Authorized Users may be increased at any time upon at least 15 days written notice to Licensor (including by email where Licensor acknowledges and agrees to such increase). Fees will be invoiced and paid as provided for in this Agreement. Despite the foregoing, fees may be increased as provided for in this Section. The number of Registered Authorized Users licensed to access the Product shall be determined during Term on a quarterly basis, based on the Customer Usage Report as defined in Section 3.4.

1.3. The Product is licensed pursuant to Subscriptions. Subscriptions will be for the term agreed to in an applicable Order. Subscriptions will automatically renew for successive one-year terms unless Licensee provides written notice of non-renewal to Mattermost at least thirty days prior to the end of the then-current term of the applicable subscription.  

1.4 Unless otherwise agreed to, all Products, Updates and Documentation licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (such as by electronic mail, file transfer or other means of electronic transmission, or by giving Licensee access to such Products, Updates and Documentation).

1.5 In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.

1.6 Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor will provide support to Licensee for the Software as specified in Licensor’s support terms and conditions for the Mattermost Enterprise Edition license level as described at https://about.mattermost.com/support.

2. Ownership of Intellectual Property; License Grant; Restrictions; Audit.  

2.1 Ownership. The Product Materials contain proprietary and confidential information of Licensor and its Licensors.  Except to the extent licenses are expressly granted hereunder, each party and each party’s Licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets in and to that party’s respective products and services.  Licensor retains all right, title and interest in and to any work product created by Licensor in the course of providing Product Materials, Service or Support under this Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Licensee or any third party relating to the Licensed Software, which are hereby assigned to Licensor. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Licensor’s website are protected under applicable copyrights, trademarks and other proprietary rights.  The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Product Materials or the Services, except as expressly authorized by this Agreement, is prohibited.

2.2. Licensee Data

(a) The parties agree that, unless otherwise agreed to in writing, Licensee shall not provide to Licensor any Licensee Data.  To the extent that Licensor agrees in writing to receive from Licensee any Licensee Data, then the provisions of Section 2.3(b) shall apply to such Licensee Data.

(b) Licensee shall own all right, title and interest in and to its Licensee Data, as well as any data that is based on or derived from the Licensee Data. Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Licensee Data.  Licensee grants to Licensor a non-exclusive, worldwide, royalty free license to the Licensee Data hereunder for the sole and exclusive purpose of providing the Services (including a license to store, record, transmit, maintain, and use, reproduce, modify, adapt, distribute and publicly display Licensee Data only to the extent necessary to carry out Licensor’s obligations under this Agreement.  In addition, and despite anything to the contrary in this Agreement, Licensor shall have the right to collect and analyze Licensee Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Licensee’s use of the Services and data derived therefrom), and Licensor will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Licensor offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

2.3 License Grant. Licensor, subject to and in consideration of timely payment by the Licensee of the license fee in accordance with Section 3 below, and of Licensee’s compliance with the other terms and conditions of this Agreement, hereby grants to the Licensee, solely during the applicable term specified in an Order, a royalty-free, limited, personal, non-exclusive, non-transferable and non-sublicensable license to: (i) install, run and Use the Product for the number of Registered Authorized Users of the Licensed Software for which Customer has a current subscription; and (2) use the Documentation, training materials or other materials supplied by Licensor to enable such internal use. Despite the foregoing, this paragraph is not intended to change or restrict the terms of any public license, and Licensor does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). In addition, Licensee shall be entitled to make such back-up copies (“Backup Copies”) of the Product(s) as shall be consistent with its usual policies for backup of its internal data. Any such copy shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Product Materials. Backup Copies shall at no time be stored in a manner enabling them to be directly executed.

2.4 License Restrictions. Licensee (and its Registered Authorized Users) shall not remove, alter or obscure any of Licensor’s (or its Licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Licensor’s (or its Licensors’) ownership or contribution from the Product Materials. Additionally, Licensee agrees to reproduce and include Licensor’s (and its Licensors’) proprietary and copyright notices on any copies of the Product Materials, or on any portion thereof, including reproduction of the copyright notice. Licensee further agrees that it (and its Registered Authorized Users) will not without express written permission of Licensor: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Product Materials; (b) make the Product Materials or Services available to, or use the Product Materials or Services for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product Materials or Services, or include any Product Materials or Services in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Product Material or Services in a way that circumvents a contractual usage limit; (e) copy the Product Materials or Services or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; (f) frame or mirror any part of the Services, other than framing on Licensee’s own intranets or otherwise for its own internal business purpose; or (g) access or use any Product Materials or Services in order to build a competitive product or service.

2.5 Audit.  For the term of the Agreement and for a period of two (2) years after termination or expiration of the Agreement, the Licensor will have the right, once per calendar year and with reasonable notice to Licensee, to have Licensee’s records (to the extent such records are applicable to compliance with this Agreement) inspected and audited to verify compliance with the license restrictions and payment terms of this Agreement.  Any such audit will take place during normal business hours and will be conducted in accordance with applicable government requirements, if any, and in a manner which does not materially interfere with Licensee’s business operations. The Licensor will pay for the audit, unless the audit discovers an underpayment of five percent (5%) or greater, in which case Licensee will pay for the audit. Licensee agrees to pay any underpayment to the Licensor within thirty (30) days of receiving notice of the underpayment. In addition, upon request by Licensor not more than once per year during the term of this Agreement, Licensee agrees to provide a certification signed by an authorized representative certifying Licensee’s compliance with this Agreement.

3. Fees; Payments.

3.1 Accrual of Payment Rights. Licensor’s right to payment for Products purchased by Licensee shall accrue on the date the Product is Delivered to Licensee.  Except as provided in Section 4.3, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.

3.2 Invoicing and Payment. Licensor will invoice Licensee in accordance with the relevant Order and, if applicable, in accordance with Section 1.2. Unless otherwise indicated, payment of the License Fee is due within thirty (30) days of Licensee’s receipt of an undisputed invoice. Licensor shall be entitled to reimbursement for any costs associated with the collection of any past-due balance.

3.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement.  Any taxes related to the Product Materials, support, or training purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on the Licensor based on the Licensor’s income. 

3.4 Customer Report; Additional Users. No later than 15 calendar days after the end of each calendar quarter during the Term (and after the Term with respect to the final Customer Usage Report), Customer shall deliver to Mattermost:

a. a report in writing and certified by an authorized agent of Customer (the “Customer Usage Report”) stating the actual number of Registered Authorized Users during the just-ended calendar quarter (the “Reporting Period”); and

b. if the number of Registered Authorized Users for such Reporting Period exceeds the number on Customer’s original purchase order, then in addition an amended or additional purchase order for the incremental additional Registered Authorized Users. 

The Customer Usage Report shall include a screenshot (or screenshots, as applicable to document all Registered Active Users) dated the last day of the applicable Reporting Period taken from Customer’s Systems Console and showing the number of “Total Authorized Users” (referred to herein as “Registered Authorized Users”). If the actual number of Registered Authorized Users for the applicable Reporting Period exceeds the number on Customer’s original purchase order, then the fees for such Reporting Period will be adjusted accordingly, and Customer shall pay Mattermost the adjusted balance based on Mattermost’s properly issued invoice.

The additional per-Registered Authorized User fee will be pro-rated based on the number of months left in the applicable subscription term, including all of the months for the calendar quarter applicable to the Customer Usage Report. No downward adjustments will be made. Mattermost will invoice customer (A) for Mattermost’s E10 Product, based on the then-current list prices and (B) for Mattermost’s E20 Product, based on the then-current list prices or such other price as is agreed between Licensor and Licensee. 

4. Warranty and Disclaimer.

4.1 Subject to each of the other provisions hereof, Licensor warrants, solely to Licensee, that (A) it has all rights and licenses necessary for it to perform its obligations hereunder, (B) other than license renewal enforcement tools, it will not knowingly include, in the Licensed Software Delivered to Customer hereunder, any computer code or other computer instructions, devices or techniques (including without limitation those known as disabling devices, Trojans, or time bombs) that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, and (C) for a period of sixty (60) days after the Product is initially Delivered to Licensee (the “Warranty Period”), the Product, when installed properly, will be capable of functioning substantially in accordance with the Specifications.  

4.2 The warranty provided in Section 4.1 will not apply if: (i) Licensee fails to notify the Licensor in writing (including by email sent to subscribers@mattermost.com) during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Product made available at no charge to Licensee during the Warranty Period.  

4.3 If Licensor breaches the warranty set forth in Section 4.1, Licensee’s sole and exclusive remedy, and the Licensor’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of the Licensor, the Licensor will, at its expense, either: (i) repair or replace the defective Product to enable it to perform substantially in accordance with the Specifications; or (ii) terminate this Agreement and refund to Licensee the fees paid by Licensee to the Licensor for the defective Product.  

4.4 The Product Materials and Services are not designed or intended for use or resale in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Product Materials or Services could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, Licensor specifically disclaims any express or implied warranty of fitness for High Risk Activities.

4.5 EXCEPT AS SET FORTH IN SECTION 4.1, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, DOCUMENTATION OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE PRODUCT MATERIALS PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH PRODUCT OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.

5. Limitation of Liability.

5.1 EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 5.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

5.2 EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL OR SPECIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

5.3 EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSOR’S INTELLECTUAL PROPERTY INDEMNITY UNDER THIS AGREEMENT, LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT.  WITH RESPECT TO CLAIMS BASED UPON LICENSOR’S INTELLECTUAL PROPERTY INDEMNITY UNDER THIS AGREEMENT, LICENSOR’S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE TWO TIMES THE AMOUNTS ACTUALLY PAID BY LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT IN THE TWO-YEAR PERIOD IMMEDIATELY PRECEDING ANY CLAIM MADE UNDER SECTION 6 OF THIS AGREEMENT. 

6. Intellectual Property Rights Indemnity.

6.1 Indemnification. Subject to each of the other provisions hereof, Licensor (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that the Mattermost Proprietary Software infringes as of the date of Delivery the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.  

6.2 Exceptions. Licensor shall have no liability to Licensee under this Section:

(a) to the extent any Claim is based on or arises from any Product Materials, or any portion or component thereof, that is: (i) not provided directly to Licensee by the Licensor; (ii) modified by a party other than the Licensor and not at the Licensor’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;

(b) to the extent Licensee continues allegedly infringing activity after: (i) being notified thereof; and (ii) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or

(c) from any breach of the Licensee’s obligations under this Agreement.

6.3 Despite any of the foregoing, Licensor’s obligations under Section 6.1 shall be valid only if Licensee: 

(a) gives notice to the Licensor of any Claim promptly upon becoming aware of the same;

(b) gives Licensor the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Licensor; and 

(c) acts in accordance with the reasonable instructions of Licensor and gives to Licensor such assistance as it shall reasonably require in respect of the conduct of the said defense.

6.4. In the event of any alleged Intellectual Property infringement, the Licensor shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Product Materials; (b) make such alterations, modifications, or adjustments to the Product Materials so that they become non-infringing without incurring a material diminution in performance or function; or (c) replace the Product Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

7. Confidentiality.

7.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential and not disclose to any third party all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. At a minimum, the Receiving Party agrees to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.  Confidential Information shall mean any information which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential. Despite the foregoing, the Product Materials, and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information. Further, despite any other provision to the contrary, neither party may disclose the specific terms of this Agreement, except as required by law.

7.2 Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the receiving party with the disclosing party’s approval; or (f) is independently developed by the receiving party without any use of confidential information. 

7.3 Collection of certain data. Despite any other provision hereof, to the extent that Licensee does not disable any data recording feature or otherwise prevent data collection, Licensor may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Licensed Software’s performance and Licensee’s use of the Licensed Software; provided that Licensor will not identify Licensee as the source of any such data without Licensee’s prior written consent. Additionally, Licensee acknowledges that the Licensed Software contains features that allow the Software to report information about Licensee’s activation, configuration, and use of the Licensed Software to Licensor.  Licensee agrees and understands that if Licensee enables or chooses not to disable such features, Licensor will receive the information collected by such features and use it to verify Licensee’s licensing, provide technical support, and otherwise improve the Licensed Software.

7.4 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). 

7.4 Return of Information. Upon expiration or termination of this Agreement for any reason, the receiving party will destroy (or at the request of the disclosing party, return) all copies of all Confidential Information of the disclosing party in its possession or under its control.

8. Term and Termination.

8.1 This Agreement shall continue until terminated in accordance with the provisions of this Section 8.

8.2 This Agreement, and any license granted thereby, may be terminated: 

(a) immediately by either party if the other party commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within fifteen (15) days of a written request to remedy the same; 

(b) immediately by either party if: (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; or (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within on hundred twenty (120) days; 

(c) By Licensor upon its reasonable determination that Licensee’s Use of the Product Materials or Services violates any applicable law or regulation; 

(d) by Licensor upon giving not less than sixty (60) days’ notice to the Licensee so long as no Orders are then outstanding; or

(e) subject to the conditions of this Section 8.2(e), by Licensee for convenience. Licensee understands and agrees that, except as otherwise expressly provided for in this Agreement, Orders placed under this Agreement are not subject to refund, credit or off-set, even if such Order (or this Agreement, or any license or services hereunder) is terminated by Licensee.  The foregoing condition forms a material part of the inducement for Licensor to enter into this Agreement. Subject to the foregoing, and to full payment by Licensee of any fees due for any Order placed hereunder, Licensee may terminate any license, services or this Agreement at any time upon thirty (30) days prior written notice to Licensor.

8.3 Any termination of this Agreement pursuant to this Paragraph shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

8.4 Upon termination of this Agreement, Licensee shall destroy (or, at the Licensee’s sole option, return) all copies of the Product Materials in its possession or control and a duly authorized officer of the Licensee shall certify in writing to the Licensor that the Licensee has complied with such obligation.

8.5 Those provisions, which by their nature survive termination, shall continue after termination or expiration of this Agreement.  Those provisions include, but are not necessarily limited to: Sections 2.1, 2.4, 2.5 (for two years), 3, 4.4, 4.5, 5, 7, 8.3-8.6, 9 and 12, all associated definitions and all accrued rights to payment. 

8.6. Termination is not an exclusive remedy for breach of this Agreement by either party.  All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.

9. Import and Export Regulations.  The Product is subject to U.S. export controls, specifically the Export Administration Regulations.  Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Product to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations). 

10. Privacy and Security

10.1 The parties agree that, unless otherwise agreed to in writing, neither party shall provide data to the other party which is or may be subject to regulation under US or international privacy rules and regulations. The transmission or sharing of any such data, if any, shall be subject to the provisions of a separately negotiated and signed data privacy agreement.

10.2 Licensee or its Registered Authorized Users have and will retain sole responsibility for: (a) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Licensee or through the use of third-party services.

11. Force Majeure.  Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority.

12.  Miscellaneous.

12.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, or sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified).

12.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.  The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

12.4 Successors. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.

12.5 Assignment and Sublicensing. Licensee shall not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the Licensor. Despite the foregoing, Licensee may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of Licensee, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise.  Licensor may assign this Agreement to any third party that succeeds to the Licensor’s interests in the Product and assumes the obligations of the Licensor hereunder. Licensor may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party. 

12.6 Headings.  Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.

12.7 Governing Law; Arbitration.  This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction  

12.8 Third Party Rights.  This Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party. 

12.9 Attorneys’ Fees.  If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled. 

12.10 Independent Contractors.  The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

12.11 Amendments.  This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party. 

12.12 Insurance. During the Term of this Agreement, Licensor shall carry commercial general liability and professional errors and omissions liability coverage. Professional errors and omissions insurance will be not less than One Million US Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage and Two Million US Dollars ($2,000,000) in aggregate.  

Mattermost’s Commercial General Liability Insurance and Professional Errors and Omissions Insurance shall provide coverage on primary, non-contributing, occurrence basis not endorsed to exclude coverage. Upon written request of Licensee, Licensor shall provide a valid certificate of insurance which names Licensee as additional insured under applicable Mattermost insurance policies.

THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF.  THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.

Exhibit A

Certain Definitions

“Delivery” means the availability of the Product Materials by the Licensor to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Product Materials. 

Documentation” means the instruction manuals, user guides, training materials or other materials and information made available to Licensee from time to time by the Licensor, in either printed or electronic form.

“Licensed Software” means the software, documentation, data, and other intellectual property through which the Services are delivered. 

“Licensee Data” means all information, content and data provided by or on behalf of Customer and made available or otherwise distributed through use of the Licensed Software and Services.

“Mattermost Proprietary Software” means computer programs included in the Licensed Software on which Licensor claims the copyright to the source code and which is not made available under any license recognized as a free, libre or open source license (including but not limited to the GNU General Public License and other similar licenses). A list of open source components included in the Licensed Software can be viewed at https://about.mattermost.com/components/.

“Normal Business Hours” means 9AM to 5PM, Pacific Time, Monday through Friday, excluding Licensor holidays. 

“Order” means any document agreed to between the parties which sets forth the Product licensed by the Licensee and any relevant pricing and applicable additional restrictions (if any), including (i) any Licensor quote which the parties agree to make a part of this Agreement, (ii) any Licensee purchase order accepted by Licensor, and (iii) any invoice issued by Licensor and accepted by Licensee.  An Order may be amended only by a writing signed by authorized representatives of both parties. Multiple Orders may be entered agreed to under this Agreement.

Product” means, collectively, the product(s) (including the Licensed Software) set forth in any Order (to the extent such product(s) are subsequently made available to Licensee by the Licensor), as well as any Update made available to Licensee by the Licensor.

Product Materials” means the Product(s) and the Documentation.

“Registered Authorized User” means any employee, agent, supplier or contractor of Licensee who activates a validly assigned license key on a single production server (or single cluster of production servers) which access a single database. Each Registered Authorized User must use a unique identity to access and use the Product unless otherwise licensed, and may access the services only to the extent licensed by Licensee. For purposes of clarity, any single employee, agent, supplier or contractor of Licensee who activates a single license key on any server or cluster of servers, so that such employee, agent, supplier or contractor accesses more than one database with respect to the Product, shall be counted as more than one Registered Authorized User. 

“Services” means Licensed Software and related services accessed by Registered Authorized Users, in a manner consistent with Licensor’s published Documentation and this Agreement.

Specifications” means those technical specifications in respect of the Product(s) which are published by the Licensor and are in effect at the time of Delivery.  Licensor shall have the right at its discretion to change or amend the Specifications to correct errors or to otherwise align the Specifications with applicable changelogs.

Subscription” means licenses to the Product Materials, Updates and Support Services.  A Subscription includes access to currently supported versions of the Product for the term of the Subscription.

“Support Hours” means Licensor’s Normal Business Hours (or such other extended support hours as Licensee may purchase from Licensor during the term of the Agreement). 

Support” shall mean those terms set forth at https://about.mattermost.com/support/.

“Update” means such enhancements, modifications, or additions to the Product Materials as may be made available from time to time by the Licensor to Licensee.

Use” shall mean the legal use by Licensee of the Product Materials and/or Services in accordance with the terms and condition of this Agreement to manage internal corporate communications.

V2019-07-16

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