Harness Subscription License Agreement

THIS SUBSCRIPTION LICENSE AGREEMENT (“AGREEMENT”) IS ENTERED INTO BETWEEN HARNESS, INC. (“HARNESS”) AND THE CUSTOMER IDENTIFIED ON THE ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE (THE “ORDER FORM”, AND SUCH CUSTOMER, “CUSTOMER”), AND IS EFFECTIVE AS OF THE EFFECTIVE DATE OF SUCH ORDER FORM (THE “EFFECTIVE DATE”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.

1. SOFTWARE LICENSE.

1.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, Harness hereby grants to Customer, during the License Term (as defined below) under the Order Form, a limited, non-exclusive, non-transferable, non-sublicensable right and license (“Subscription License”) to access and use Harness’ continuous delivery software product (whether deployed on a software-as-a-service (“SaaS”) basis or in an on-premise installation) (collectively, the “Software”) for internal business purposes only for the number of license units as specifically designated in the Order Form (“License Units”). For purposes hereof, the “License Term” of the Order Form is the term of the Order Form as specifically designated in such Order Form (unless earlier terminated in accordance with this Agreement). For the avoidance of doubt, Customer’s affiliates (and employees, contractors and agents thereof) shall not use the Software without Harness’ prior written consent. Any references in the Order Form to an “Agreement” or other similar term shall be deemed to refer to this Agreement.

1.2 RESTRICTIONS ON USE. Except as otherwise expressly provided in this Agreement, Customer 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 basis, 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 or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or underlying algorithms 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 Harness); (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 or regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1 (License Grant); (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) health information, biometric data, genetic data, or payment/financial information, (3) any data relating to a person under the age of thirteen (13) years old, or (4) 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 (2) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity, (3) interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (4) attempt to gain unauthorized access to the Software or Harness’ systems or networks, or (5) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the SaaS deployment of the Software. Customer shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

1.3 UNAUTHORIZED USE. Customer shall notify Harness promptly of any unauthorized use or access of the Software (including unauthorized users or unauthorized disclosure of any password or account), or any other known or suspected breach of security or misuse of the Software. Customer is responsible for use of the Software (and all other acts or omissions) by its employees, contractors, affiliates or other users that it allows to use or access the Software.

1.4 SUPPORT. Subject to Customer’s payment of all fees set forth in the Order Form, Harness will provide reasonable technical support for the Software during the Term in accordance with Harness’ standard practice. All fees for such support are included in the fees for the Software. Further, notwithstanding anything herein to the contrary, Customer agrees to facilitate any connections and access necessary for Harness to (i) deliver, deploy and provide the Software as provided hereunder and (ii) to perform its obligations hereunder (including its support obligations).

2. FEES.

2.1 PRICING. Customer will be invoiced for those amounts and at those prices set forth in the Order Form (an “Invoice”). All fees shall be invoiced and pre-paid on an annual basis, unless otherwise specified in the Order Form. Fees do not include any customization of the Software (nor support for any such customizations, unless otherwise agreed in writing). If Customer’s usage of the Software is in excess of the usage limitations or License Units set forth in the Order Form, Customer will be billed for those overages at a pro-rated amount for the remainder of the applicable License Term under the Order Form, based on Harness’ then-current standard pricing. If Harness believes in good faith that Customer’s usage of the Software exceeds the usage limitations set forth on the Order Form, Customer agrees to allow Harness to audit Customer’s use of the Software (not more frequently than twice per calendar year), upon at least twenty-four (24) hours’ notice, in order to determine Customer’s actual Software use, using a commercially reasonable auditing procedure. Customer acknowledges that purchases made under this Agreement are neither contingent on the delivery of any future functionality or features of the Software nor dependent on any oral or written public comments made by Harness regarding future functionality or features of the Software.

2.2 PAYMENTS. Customer shall pay Invoices under the Order Form within thirty (30) days of the invoice date (the “Invoice Due Date”). If Customer reasonably disputes any Invoice, (i) Customer shall provide Harness with written notice of such dispute, including the grounds therefor (a “Dispute Notice”) prior to the Invoice Due Date, (ii) Customer and Harness shall, for a period of fifteen (15) days following Harness’ receipt of such Dispute Notice, negotiate in good faith to resolve the dispute, and (iii) if such dispute remains unresolved at the end of such period, the parties shall retain all of their respective rights under this Agreement (including, without limitation, any action for non-payment of the fees set forth herein). All payment obligations are non-cancelable and all amounts paid are non-refundable, except (a) for amounts paid in error that are not actually due under this Agreement, and (b) as set forth in Sections 6.1 (Limited Warranty) and 7.1 (Indemnification by Harness). The fees paid by Customer are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on Harness’ income. Customer represents and warrants that the billing and contact information provided to Harness is complete and accurate, and Harness shall have no responsibility for any Invoices that are not received due to inaccurate or missing information provided by Customer. Customer shall pay interest on all payments not received by the Invoice Due Date at a rate of one percent (1%) per month or the maximum amount allowed by law, whichever is less. All amounts due under this Agreement and the Order Form shall be paid by Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If requested by Harness, Customer will obtain and furnish to Harness tax receipts or other certificates issued by the competent taxation office showing the payments of the withholding tax within a reasonable time after payment. Following written notice, Harness shall be entitled to suspend Customer’s use of and access to the Software if payments are not received within thirty (30) days of the Invoice Due Date.

3. CONFIDENTIALITY.

3.1 SCOPE AND RESTRICTIONS. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, the terms of the Order Form, the Software, any technical or other documentation relating to the Software, logins, passwords and other access codes and any and all information regarding Harness’ business, products and services are the Confidential Information of Harness. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

3.2 EQUITABLE RELIEF. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.

4. PROPRIETARY RIGHTS. Harness owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software (and all derivatives, improvements or enhancements thereto). Customer acknowledges that the rights granted under this Agreement do not provide Customer with title to or ownership of the Software, in whole or in part. Certain “free” or “open source” based software (the “FOSS Software”) and third party software included with the Software (the “Third Party Software”) is shipped with the Software but is not considered part of the Software hereunder. A list of the FOSS Software and Third Party Software is set forth on the webpage located at https://harness.io/open-source-third-party-software/ (the “FOSS Webpage”). With respect to Third Party Software included with the Software, such Third Party Software suppliers are third party beneficiaries of this Agreement. Customer’s use of such FOSS Software is subject to the terms of the licenses set forth on the FOSS Webpage. The Software and Third Party Software may only be used and accessed by Customer as prescribed by the Harness documentation located at http://docs.harness.io/, as may be updated from time to time by Harness (the “Documentation”).

5. TERM AND TERMINATION. The term of this Agreement begins on the Effective Date and will remain in effect until the Order Form has expired or terminated, or until this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs first (the “Term”). Unless earlier terminated in accordance with this Agreement, the initial License Term of the Order Form commences on the Order Form Effective Date (as defined in such Order Form) and continues for the duration of the License Term as expressly specified therein. If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that Harness may immediately terminate this Agreement and/or Customer’s Subscription License(s) under Order Form to the Software upon Customer’s breach of Section 1.2 (Restrictions on Use). Either party may also terminate this Agreement upon written notice if the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event. Upon expiration or termination of this Agreement for any reason, (i) all rights granted to Customer shall terminate and Customer shall destroy any copies of the Software and Documentation within Customer’s possession and control; and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 1.4, 2, 3, 4, 5, 6.2 and 7 through 11, will survive any expiration or termination hereof.

6. WARRANTIES.

6.1 LIMITED WARRANTY. Harness warrants that during the first thirty (30) days after the beginning of a License Term under the Order Form, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable version of the Software. Harness’ sole and exclusive obligation, and Customer’s sole and exclusive remedy, for a breach of this warranty shall be that Harness will use commercially reasonable efforts to repair or replace the Software to conform in all material respects to the Documentation, and if Harness is unable to materially restore such functionality within thirty (30) days from the date of written notice of breach of this warranty by Customer, Customer shall be entitled to terminate the Subscription License to the affected Software under the Order Form upon written notice to Harness, and Harness shall promptly provide a pro-rata refund of the Subscription License fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). To be eligible for the foregoing remedy, Customer must notify Harness in writing of any warranty breaches within such warranty period, and Customer must have installed and configured the Software in accordance with the Documentation.

6.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT ARE PROVIDED “AS IS,” AND HARNESS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. HARNESS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, MAINTENANCE OR SUPPORT. Harness is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and Customer acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments, including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles or weaponry systems, or any other application in which failure of the Software could lead to death or serious bodily injury of a person, or to severe physical or environmental damage (each, a “High Risk Use”). Harness expressly disclaims any express or implied warranty or representation of fitness for High Risk Use. Harness shall not be liable to Customer for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Software to process Prohibited Data.

7. INDEMNIFICATION.

7.1 BY HARNESS. Harness agrees to defend, at its expense, Customer against (or, at Harness’ sole option, settle), any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and Harness shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in Harness’ sole opinion is likely to become, subject to such a claim, Harness, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Software, or (c) terminate the applicable Subscription License and provide a pro-rata refund of the Subscription License fees under the Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). The foregoing indemnification obligation of Harness will not apply: (1) if the Software is or has been modified by Customer or its agent; (2) if the Software is combined with other non-Harness products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized use of the Software. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third party intellectual property rights.

7.2 BY CUSTOMER. Customer agrees to defend, at its expense, Harness and its affiliates, its suppliers and its resellers against any third party claim to the extent such claim arises from or is made in connection with Customer’s breach of Section 1 (Software License) or Customer’s negligence or willful misconduct, and Customer shall pay all costs and damages finally awarded against Harness by a court of competent jurisdiction as a result of any such claim.

7.3 INDEMNIFICATION REQUIREMENTS. In connection with any claim for indemnification under this Section 7, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 7, except to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind either party shall not be final without the other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer’s consent shall not be required when Harness is the indemnifying party if the settlement involves only the payment of money by Harness.

8. LIMITATION OF LIABILITY. The limits below will not apply to the extent prohibited by applicable law.

8.1 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE), IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE), NEITHER PARTY’S LIABILITY FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID (PLUS FEES PAYABLE) TO HARNESS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

9. FORCE MAJEURE. Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.

10. DATA COLLECTION. Customer understands, acknowledges and agrees that Harness’ Software stores, in encrypted form, sensitive data components involved in Customer’s own software delivery processes (including passwords, keys, and credentials). In addition, Harness captures logs, performance monitoring data, and test results to verify the success or failure of deployments of the Software, and collects data and metrics on Customer’s activities, such as how and which features of the Software Customer uses. If Customer provides Harness with any personally identifiable information (“personal data”), Customer represents and warrants that such information has been collected by Customer in accordance with the provisions of all applicable data protection laws and regulations, and that Customer has all right and consents necessary to provide such personal data to Harness. Customer will indemnify Harness for reasonable costs and other amounts that Harness may incur relating to any breach of this Section 10. Notwithstanding anything herein to the contrary, Harness shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer and data derived therefrom), and Harness will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other Harness offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Harness will employ physical and electronic safeguards for all data in its possession and control according to industry standards.

11. MISCELLANEOUS. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement, together with the Order Form and any statements of work incorporating or referencing this Agreement, if applicable, represent the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. The person signing or otherwise accepting this Agreement for Customer represents that s/he is duly authorized by all necessary and appropriate corporate action to enter this Agreement on behalf of Customer. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. The Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice, statement of work or similar document (other than the Order Form, which will take precedence), even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. For purposes of this Agreement, “including” means “including without limitation.” The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Software. Harness reserves the right to perform its obligations from locations and/or through use of affiliates, contractors and subcontractors, worldwide, provided that Harness will be responsible for such parties. Customer may not assign this Agreement without the prior written consent of Harness, and any purported assignment in violation of this Section 11 shall be void. Harness may assign, transfer or subcontract this Agreement in whole or in part without Customer’s consent. Upon any assignment of this Agreement by Customer that is approved by Harness, if the Order Form contains a Subscription License for an “unlimited” amount of Licensee Units, such Subscription License will, with respect to Customer or the successor entity, as applicable, be capped at the number of authorized Licensee Units in use immediately prior to such assignment. Customer agrees that Harness may refer to Customer by its trade name and logo, and may briefly describe Customer’s business, in Harness’ marketing materials and website. Harness may give notice to Customer by electronic mail to Customer’s email address as provided by Customer on the Order Form or on record in Customer’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address as provided by Customer on the Order Form or on record in Customer’s account information. Customer may give notice to Harness at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Harness at the following address or such other address as may be notified to Customer from time to time: Harness, 116 New Montgomery St., Suite 200, San Francisco, CA 94105, Attn.: Legal Department. Notice under this Agreement shall be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next-day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.