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This Master Agreement, including exhibits (“Agreement”) is entered into by and between Mirantis, Inc., a Delaware corporation, with offices at 900 E. Hamilton Ave., Suite 650, Campbell, CA 95008, USA (“Mirantis”), and the purchaser of Mirantis Services who has accepted the Agreement or is identified in the signature block below (“Customer”). The effective date of the Agreement shall be the earlier of the date Customer uses the Software or Services, or date of last signature (“Effective Date”).

1. Purpose. This Agreement enables Mirantis, and its Affiliates, to provide Customer with Subscription Services, Consulting Services, and Training Services (“Services”). The Services purchased by Customer will be described in an Order Form signed by the parties, using an online store accessible through the Mirantis website, or purchased from an authorized Mirantis partner. “Order Form(s)” means each written order form(s) executed by Customer and Mirantis incorporating this Agreement and is subject to the terms and conditions herein.
1.1. Subscription Services. Subscription Services are purchased on a per unit basis or as described by Mirantis in an Order Form (“Unit”). “Subscription Services” means the subscription services described in the Agreement exhibits at https://www.mirantis.com/company/agreements/ or an exhibit to an Order Form (each an “Exhibit”). A “Unit” is the measurement of Software or Service, defined in an Exhibit and identified in the applicable Order Form. “Software” means the software, which includes third party open source software, made available by Mirantis and modifications, additions, updates, upgrades, or further enhancements, provided if or when available, through the Services. “Mirantis Portal(s)” means the Mirantis websites for the download of all components of the Software and Documentation and access to the support and ticketing system, as made available by Mirantis. “Documentation” means Mirantis’ user guide(s) for the Mirantis Portal and/or Software, as may be updated from time to time, and any other guides, reference materials or other similar documentation made available to Customer in connection with the Mirantis Portal or Software.
1.2. Consulting Services. Customer and Mirantis may execute an Order Form(s) with a statement of work (“SOW”) for consulting services (“Consulting Services”). Mirantis will use commercially reasonable efforts to provide the Consulting Services as set forth in the applicable SOW(s).
1.3. Training Services. Customer may purchase “Training Services” consisting of Mirantis provided courses, exams, certifications, and other training sold and provided by Mirantis or authorized Mirantis partners. Training Services may be purchased directly from Mirantis, online, or from authorized Mirantis partners provided pursuant to this Agreement and the Training Services terms and conditions in Exhibit B, Training Services (at https://www.mirantis.com/company/agreements/).
1.4. Partners and Affiliates. Except as otherwise provided, this Agreement governs all purchases and use of the Services, which includes Mirantis Software, by Customer. If Customer purchases Services through a partner, Mirantis is solely responsible for providing such Services and Software pursuant to the terms of this Agreement. Mirantis is not responsible for any additional obligations, conditions, or warranties agreed to between Customer and partner. The parties agree that Customer Affiliate(s) may acquire Services and Software from Mirantis or Mirantis Affiliates by entering into an Order Form with Mirantis or Mirantis Affiliate(s). “Affiliate” means an entity that owns or controls (has the direct or indirect power to direct or cause the direction of management and policies of an entity), is owned or controlled by, or is under the common control or ownership with a party.

2. Fees and Expenses, Payment, & Taxes. Payment, and Taxes apply only if Customer is purchasing directly from Mirantis.
2.1. Fees and Expenses. The fees for Subscription Services, Consulting Services, and Training Services are set forth in the applicable Order Form (“Fees”). Customer agrees to pay Fee(s) for Subscription Services based on the total number of Units of Software deployed, installed; and/or Services used, as described in an Exhibit. Customer agrees to pay the applicable Fee for each Unit. Customer will reimburse Mirantis for all reasonable travel and related expenses, including transportation, lodging and meal expenses for Services provided at Customer’s site. Expenses will be determined based on Mirantis’ standard travel policy. All Fees paid are non-refundable.
2.2. Payment. Fees are due and payable by Customer within thirty (30) days from the date of invoice. All Fees for Subscription Services are due and payable by Customer annually and in advance of the performance or provision of the Services or access to the Software. Fees for Consulting Services and Training Services are due and payable by Customer as specified in the applicable Order Form or SOW. Unless otherwise specified in an Order Form, all payments must be made in U.S. dollars, and by credit card, wire transfer, or other prearranged payment method acceptable to Mirantis. Mirantis reserves the right to charge a late payment interest of 1.5% per month against overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, Mirantis may suspend any of the Services or terminate this Agreement or the applicable Order Form if (a) Customer is delinquent on its payment obligations for thirty (30) days or more or otherwise breaches the Agreement; (b) Mirantis is no longer licensed or permitted to make the Mirantis Portal or Software available due to a change in law, expiration or revocation of applicable licenses, or otherwise; or (c) Customer declares bankruptcy, is adjudicated bankrupt, or a receiver or trustee is appointed for Customer or substantially all of its assets. Without limitation of Mirantis’ other remedies, Mirantis may suspend any Services if Customer fails to pay any applicable Fees when due or otherwise breaches this Agreement.
2.3. Taxes. All Fees and expenses under this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government, and Customer agrees to pay for any and all federal, state, or local sales, use, excise, privilege, or other taxes, duties or assessments, however designated or levied, relating to this Agreement, exclusive of taxes based on Mirantis’ net income. Customer agrees to gross up payments actually made to Mirantis such that Mirantis receives sums due in full and free of any withholding tax(es) or deductions Customer is required to pay.

3. Records, Reporting, and Inspections. During the term of the Agreement and for at least two (2) years thereafter, Customer will keep and maintain commercially reasonable written records and accounts regarding Customer’s use of the Subscription Services ("Records"). Customer will promptly notify Mirantis if the actual number of Units or Subscription Services used exceeds the number of Units for which Customer has paid. The notification will include the number of additional Units and the first date(s) on which either the additional Units were created or Subscription Services were first used. Customer shall pay for such additional Units in accordance with the Agreement. During the Agreement term and for two (2) years thereafter, Mirantis may inspect Customer’s records and facilities to verify Customer’s compliance with the Agreement during normal business hours and with at least fifteen (15) day’s notice. Any noncompliance, including unpaid Units, will be reported in writing to Customer. If the number of Units exceeds the Units for which Customer has paid the applicable Fees, Mirantis will invoice and Customer will pay for any unpaid Units within fifteen (15) days of the date of invoice. The initial term for additional Units will begin on the first date(s) on the additional Units were created or Subscription Services were first used and prorated to co-terminate with Customers then existing Units of Subscription Services.

4. Customer Responsibilities. In addition to any other Customer obligations set forth in this Agreement: (a) Where any information, cooperation or action, including obtaining or maintaining third party consents or licenses for Mirantis to use software, information, and systems, on the part of Customer or its representatives is necessary or useful to provide any of the Services, Customer or its representatives will, at Customer’s own expense, provide such information or cooperation or provide such action in a timely and professional manner. For the avoidance of doubt, Mirantis will be entitled to relief for any deficiency in providing any of the Services if such deficiency results from Customer’s failure to provide the required access, information, cooperation, or action. Customer will be responsible for the back-up of all data and software, and Mirantis will not be liable for any loss of data or software or corruption to or damage of data or software.

5. License and Ownership. (a) The Software provided by Mirantis as part of the Subscription Services are governed by license(s) contained or referenced in the Exhibit(s); (b) neither party has the right to use the other party’s marks provided that Mirantis may use Customer’s name and logo for the sole purpose of identifying Customer as a Mirantis customer; and (c) notwithstanding anything to the contrary contained in this Agreement or an Order Form, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed in and during the course of any Services may be used by Mirantis, without an obligation to account (financially or otherwise), in any way Mirantis deems appropriate, including by or for itself or its customers or partners.

6.1. Term. This Agreement commences on the Effective Date and ends when Mirantis is no longer obligated to provide Customer with Services under this Agreement. Each Order Form begins on the date the Order Form is executed (“Order Form Effective Date”) and continues for the term stated in the Order Form. After the initial term, the term for Subscription Services will renew for successive terms of one (1) year each unless either party provides notice to the other party at least thirty (30) days prior to end of the applicable term. Customer must use Services set forth in an Order Form during the term specified in the Order Form or within one (1) year of the Order Form Effective Date; if unused, such Services will be forfeited.

6.2. Termination. Either party may terminate this Agreement or an Order Form immediately upon notice to the other party if the other party materially breaches an obligation hereunder that has not been cured within thirty (30) days after receipt of written notice from the non-defaulting party provided, except that such notice and cure will not be required for a breach of Section 7 (Confidentiality) or 12.3 (Export). The termination of an individual Order Form will not terminate any other Order Form or this Agreement unless otherwise specified in the written notice of termination. Without prejudice to any other right or remedy of Mirantis, in the event either party terminates an Order Form, Customer will pay for all Services provided up to the effective date of termination.

6.3. Effect of Termination. Sections 2, 3, 5, 6.3, 7, 9, 10, & 12 will survive the termination or expiration of this Agreement. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable law.

7. Confidentiality. Each party receiving Confidential Information (“Recipient”) from the party disclosing such information (“Discloser”) shall use Confidential Information solely for the purpose of providing and receiving Software and Services under this Agreement. "Confidential Information" means information provided by the Discloser that is reasonably marked as “confidential”, identified as confidential at the time of disclosure, or reasonably known by Recipient to be confidential or should reasonably be expected to be known as confidential. Recipient acknowledges and agrees that the disclosure of the Confidential Information does not confer any license, interest, or rights of any kind in or to the Confidential Information except as provided herein. For two (2) years after the termination of this Agreement Recipient shall hold Confidential Information in confidence and not disclose or use the Confidential Information, directly or indirectly, in any form, by any means, or for any purpose. Recipient shall only disclose the Confidential Information to its employees, contractors, and Affiliates to the extent such persons have a need to know such information for the purposes described in this Agreement, and provided such parties shall be obligated in writing to comply with terms and conditions no less protective than those set forth in this Section. Recipient shall protect the Confidential Information using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or disclosure of the Confidential Information as Recipient uses to protect its own confidential information. Recipient shall notify the Discloser in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these confidentiality obligations and shall reasonably cooperate with the Discloser to regain possession of such Confidential Information and prevent further unauthorized use and disclosure. Confidential Information does not include information that: (a) is or becomes generally publicly available through no fault of Recipient, (b) was known to Recipient, free of any confidentiality obligations, before its disclosure, (c) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, (d) is independently developed by Recipient without use of Confidential Information, (e) is licensed under an open source license, or (f) is disclosed by Recipient pursuant to a requirement of a governmental agency or by operation of law, provided that Recipient shall notify Discloser prior to disclosure (if it can do so without violating any law or rule) in order to give Discloser a reasonable opportunity to seek an appropriate protective order or similar protection(s).

8. Limited Warranty. Mirantis represents and warrants to Customer that (a) Mirantis has the legal power to enter into this Agreement; and (b) Mirantis will perform the Services in a workmanlike manner and with diligence and skills consistent with industry standards.

9. Disclaimers
9.1. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MIRANTIS DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE OR THAT MIRANTIS WILL CORRECT ALL SOFTWARE ERRORS. FOR THE BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION CUSTOMER'S EXCLUSIVE REMEDY, AND MIRANTIS’ ENTIRE LIABILITY, WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF MIRANTIS CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO-RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION. Without limiting the generality of the foregoing disclaimer, Customer acknowledges that the Software and Services are not specifically designed, manufactured or intended for use in any life support systems; planning, construction, maintenance, control, or direct operation of nuclear facilities; or navigation, control or communication systems, or weapons systems.
9.2. Disclaimer of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT, SOFTWARE, SERVICES OR THE USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Limitation of Liability. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATION, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY UNDER THE APPLICABLE ORDER FORM. THE LIMITATIONS HEREIN WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
 
11. Mirantis Assurance
11.1. Terms of Eligibility. As conditions precedent to Mirantis’ obligations under this Section, Customer must: (i) be current in the payment of all fees at the time the Claim (as defined below) is brought; (ii) not be in litigation with, or in receipt of alleged infringement from, a party against whom relief is sought when purchasing Subscription Services; (iii) notify Mirantis promptly, but in no event later than ten (10) days of receipt of any Claim for which relief is sought under this Section; (iv) allow Mirantis to solely control and conduct the defense of the Claim with counsel of its choice and to settle any such Claim at Mirantis’ sole discretion; (v) provide reasonable cooperation with Mirantis in the defense of the Claim; and (vi) has complied with the terms of the Agreement and this Section. For the purposes of this Section 11, “Covered Software” means the Mirantis Hardened Packages, as defined in an Exhibit, available for download through the Mirantis Portal.
11.2. Assurances. If an unaffiliated third party initiates a legal action against Customer alleging that Customer’s use of Covered Software during the term of active fully-paid Subscription Service(s) directly infringes a third party’s copyrights, patents or trademarks, or trade secret rights (“Third Party Rights”) (such action, a “Claim”), then: (a) subject to the terms of this Section, Mirantis will (i) defend Customer from such Claim, and (ii) pay all costs, damages and expenses (including reasonable attorneys’ fees and court costs) that are finally awarded or paid as part of a settlement that are attributable to Customer's use of the Covered Software; and (b) if Customer’s use of Covered Software is found by a court to infringe Third Party Rights (or if Mirantis reasonably believes that such a finding is likely), then Mirantis will, at its expense and option: (i) obtain the rights necessary for Customer to continue to use the Covered Software; (ii) modify the Covered Software so that it is non-infringing; or (iii) replace the allegedly infringing portion of the Covered Software with non-infringing code of similar functionality; provided that if none of the foregoing options (i-iii) is commercially reasonable in Mirantis’ discretion, then Mirantis may terminate the Agreement without further liability, and Mirantis will refund Customer all Fees paid by Customer related to Subscription Services during the twelve (12) month period prior to the Claim is brought. Mirantis will have no obligation to Customer under this Agreement with respect to any Claims based upon: (i) a modification of Covered Software made by Customer (other than at Mirantis’ written direction); (ii) Mirantis’ compliance with any designs, specifications or instructions provided by Customer; (iii) use of the Covered Software in combination with products, data, or services not provided by Mirantis, if the infringement or misappropriation would not have occurred without such combination unless such Covered Software has no substantial non-infringing use except in such combination; (iv) use of any release of the Covered Software if, as of the date of a Claim or threatened Claim, the infringement or misappropriation would not have occurred through use of a more recent release of the Covered Software; (v) use by Customer after notice by Mirantis to discontinue use of all or a portion of the Covered Software; (vi) distribution of the Covered Software not authorized by Mirantis in writing, or (v) a counter-claim brought against Customer in response to litigation initiated by Customer.
12. General Provisions
12.1. Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided that either party may assign this Agreement or rights granted hereunder without the consent of the other party (i) to its Affiliate, and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition of all or substantially all the assets of a party. In no event shall the Agreement be transferred or assigned to a direct competitor of the other party. Any attempted assignment or transfer in violation of this Section 12.1 shall be null and void.
12.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law provisions. Any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state courts in and for Santa Clara County, California, U.S.A. (or, if there is federal jurisdiction, the United States District Court for the Northern District of California). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. The Uniform Computer Information Transactions Act (UCITA) or any similar laws or regulations do not apply to this Agreement. Any claim or action, regardless of form, arising out of this Agreement or an Order Form will be made against Mirantis, Inc. alone.
12.3. Export. Any and all materials provided to Customer under this Agreement, including technical data relating thereto, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and sanctions control regimes of the United States and may be subject to export or import laws or regulations in other countries. Customer represents, warrants and covenants that it (i) is not a prohibited party identified on any government export exclusion lists or a member of a government of any other export-prohibited countries pursuant to applicable export and import laws and regulations, (ii) will not transfer software, technology, and other technical data to export-prohibited parties or countries otherwise in violation of U.S. or other applicable export or import laws, or use the Mirantis Portal, Software or any other Mirantis products or documentation for military, nuclear, missile, chemical or biological weaponry end uses in violation of U.S. export laws. Additionally, each Party agrees that it will not engage in any illegal, unfair, deceptive, or unethical business practices whatsoever, including, but not limited to, any act that would constitute a violation of the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, or other similar anti-corruption laws.
12.4. Global Coverage. Customer agrees to allow Mirantis and its Affiliates to store and use information provided by Customer, including names, business phone numbers, and business e-mail addresses anywhere Mirantis does business that will be used only in connection with Mirantis’ business relationship with Customer, and may be transferred worldwide between Mirantis, its Affiliates, subcontractors, partners, and assignees for uses consistent with Mirantis’ business relationship with Customer. Except for the foregoing, Customer’s use of, and Mirantis providing the Services does not require Customer to provide, disclose or give access to Mirantis any personal information (e.g. Personally Identifiable Information) or similarly protected sensitive data or personal data to Mirantis (collectively, “Customer Information”). Customer agrees to take all reasonable steps to avoid disclosure of Customer Information to Mirantis which may include preventing access to Customer Information; and that it is solely liable for all Customer Information obligations, including without limitation, confidentiality and data protection and privacy obligations and restrictions, imposed by applicable law, regulation or court order. If disclosed, Customer warrants that it has obtained all the relevant consents to disclose Customer Information. If disclosed, Customer will promptly notify Mirantis of any disclosure of Customer Information to Mirantis and, excepted from Sections 9.2 and 10, will defend, indemnify and hold Mirantis harmless from and against any claims arising out of Customer's breach of this Section 12.4.
12.5. Waiver. The waiver or failure of Mirantis to exercise in any respect any right provided for in this Agreement will not be deemed a waiver of any further right under this Agreement.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain the particular provisions held to be unenforceable.
12.7. Integration; Amendment. This Agreement, including each Order Form, sets forth the entire agreement between Customer and Mirantis relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, and representations relating to the subject matter hereof. In the event of any conflict or inconsistency between the provisions in the body of this Agreement, any Order Form and the Exhibits, the terms will be interpreted in the following order: (a) Order Form, (b) Exhibit, and (c) the Agreement which prevails over any conflicting or additional terms of any quote, order, purchase order, acknowledgment or similar communication between the parties prior to or during the term of this Agreement. This Agreement may not be modified except pursuant to a written agreement signed by a duly authorized representative of each party.
12.8. Notices. Notices to Mirantis will be sent to the address set forth at the top of this Agreement (or as later designated in writing by Mirantis) to Mirantis Finance with a copy to Mirantis Legal, and notices to Customer will be sent to the address provided below or to such other addresses as it may give Mirantis in accordance with this Section.
12.9. Independent Contractor Relationship. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership, or joint venture or imposes fiduciary duties, obligations, or liability between Customer and Mirantis. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement.
12.10. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which the performance is delayed by circumstances beyond its reasonable control, such as systemic, electrical, telecommunications, or other utility failures, earthquake, storms, fire, flood or other elements of nature, embargo, strike, riot, terrorism, change in law or policy, or the intervention of any governmental authority.
12.11. U.S. Government End Users. The Services, Software, and Documentation are "Commercial items," "Commercial computer software" and "Computer software documentation" as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Services, Software, and Documentation to the terms of this Agreement.
12.12. Counterparts. This Agreement may be executed (including, without limitation, by e-signature) in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.


Mirantis, Inc.
Customer
By: By:
Name: Name:
Title: Title:
Date: Date:

Customer Name & Address:




Customer Contact:
Phone:
Email: