Coiled Subscription and Services Agreement#

Subject to the terms and conditions of this Agreement, Coiled grants Customer, during the Subscription term specified on the applicable Order Form, a limited, non-exclusive, non-transferable right to access and use the Products for the number of Users or usage levels described on the Order Form, solely in the normal course of Customer's internal business operations. Customer may not grant or authorize sublicenses or further distribute the Products.

Customer shall not itself, or through any Affiliate, agent or other third party: (i) sell, lease, license, distribute, sublicense or otherwise transfer the Products or Documentation to a third party, (ii) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, (iii) modify or create derivative works based upon the Products, (iv) allow access or permit use of the Products by anyone other than authorized Users, (v) use the Products in any manner that violates applicable law or that materially interferes with the operation of the Products or other users' use of them, or (vi) circumvent any license keys, access controls, or usage limits in the Products.

Coiled may suspend Customer's or any User's access to the Products, in whole or in part, if Coiled reasonably determines that such access poses a security risk to the Products or other users, violates this Section 1.2, or is being used in an abusive manner that materially interferes with the Products or other users. Where practicable, Coiled will provide advance notice and an opportunity to cure, except that Coiled may suspend immediately where reasonably necessary to address an active security risk or abuse. Coiled will restore access promptly once the underlying issue is resolved.

During the time that Customer has paid the applicable fees for Subscriptions / Support and Maintenance, Coiled will provide Customer with the Support and Maintenance for the Products described in the applicable Order Form. Support channels, support levels, and response targets apply only if expressly stated in the applicable Order Form or otherwise agreed in writing by Coiled. Subscriptions and Support and Maintenance will automatically renew each year unless either party provides written notice to the other party at least sixty (60) days before the end of the then-current Subscription term of its intent not to renew.

Coiled will provide Customer with any Services described on an applicable Order Form. Services are provided solely for Customer's internal use, and Customer may not use the Services to provide services to any third party.

3.2.1 Cooperation#

Customer agrees to provide Coiled with cooperation, materials, information, access, and support that Coiled reasonably requests to provide the Services, including as may be set forth in an applicable Order Form.

3.2.2 Third Party Products#

In the event that Customer provides Coiled with access to any third-party software or hardware, Customer will ensure that it has the rights to provide Coiled with such access.

Coiled and its suppliers retain all right, title, and interest in and to the Products and all Coiled proprietary or licensed tools, trademarks, templates, methods, know-how, services and technology, including extensions, enhancements and derivatives thereof developed by or on behalf of Coiled ("Coiled Tools"). Subject to the foregoing, Customer owns all right, title, and interest in and to Customer Data and any analysis specific to Customer Data. All Coiled trademarks, trade names, logos and copyright notices shall be preserved by Customer.

Customer agrees to pay Coiled the applicable fees listed in each Order Form. Customer will pay Coiled all sales, use, and excise taxes levied upon the delivery or use of the taxable Products and Services described in this Agreement, unless Customer provides Coiled a valid tax exemption certificate or direct pay permit.

Coiled will determine usage of the Products for billing purposes from telemetry generated by the Products. Not more than once per calendar year, and upon at least thirty (30) days' prior written notice, Coiled may request a written certification, signed by an authorized representative of Customer, confirming Customer's compliance with the usage limits and access terms set forth herein. Any information disclosed in connection with such certification will be treated as Customer's Confidential Information.

Coiled warrants to Customer that, during the applicable Subscription term, the generally available hosted Products will materially conform to the applicable Documentation when used by Customer in accordance with this Agreement, the Documentation, and the applicable Order Form. If Customer notifies Coiled of a breach of this Section 6.1, Coiled will use commercially reasonable efforts to correct the non-conformity or provide a workaround.

Coiled warrants that Services will be performed in a professional and workmanlike manner. If Services are not performed as set forth above, Coiled will re-perform the applicable Services.

The remedies in Section 6.1 and 6.2 are Customer's sole and exclusive remedies for breach of warranty and Coiled's sole and exclusive liability for breach of warranty.

The warranties in Sections 6.1 and 6.2 are made to and for the benefit of Customer only. The warranties will apply only if:

6.4.1 Proper Use#

Customer has used the Products in accordance with this Agreement, the applicable Order Form, and the applicable Documentation,

6.4.2 No Unauthorized Modifications#

Customer has not made any unauthorized modification, alteration, or addition to the Products or supported Customer software, and

6.4.3 Timely Notification#

Coiled receives written notification of the breach within thirty (30) days after Customer becomes aware of the alleged breach.

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1 AND 6.2 ABOVE, COILED MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICES, SUPPORT AND MAINTENANCE, PRODUCTS, THE DOCUMENTATION OR ANY MATERIALS MADE AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT. COILED DOES NOT WARRANT THAT THE SERVICES, SUPPORT AND MAINTENANCE, PRODUCTS, THE DOCUMENTATION OR ANY MATERIALS MADE AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCTS ARE DESIGNED TO MEET CUSTOMER'S BUSINESS REQUIREMENTS. COILED HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SERVICES, SUPPORT AND MAINTENANCE, PRODUCTS, THE DOCUMENTATION OR ANY MATERIALS MADE AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE CONTRARY TO, OR UNENFORCEABLE UNDER, APPLICABLE LAW OR REGULATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COILED'S LICENSORS HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, COILED'S TOTAL AGGREGATE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY CUSTOMER TO COILED FOR THE SPECIFIC PRODUCTS OR SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND COILED. COILED'S FEES FOR THE PRODUCTS, SERVICES AND SUPPORT AND MAINTENANCE REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.

NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN THIS SECTION 6.6 SHALL NOT APPLY TO: LIABILITY ARISING FROM (i) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (ii) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9.11 (CONFIDENTIAL INFORMATION). IN PLACE OF THE LIMIT IN THE PRECEDING PARAGRAPH, THE FOLLOWING LIMITS APPLY: EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR BREACH OF SECTION 6A (DATA PROTECTION AND SECURITY, INCLUDING, WITHOUT LIMITATION, THE COILED DATA PROCESSING AGREEMENT) SHALL NOT EXCEED THREE (3) TIMES THE FEES PAID BY CUSTOMER TO COILED DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE.

Customer retains all right, title, and interest in and to Customer Data. Customer is responsible for Customer-Controlled Data, including the data in Customer's cloud environment and the workloads Customer runs there. Coiled does not possess or control Customer-Controlled Data merely because the Products help Customer deploy, connect to, monitor, or manage compute resources that access it. Notwithstanding anything to the contrary, Coiled may access and use Coiled-Managed Customer Data only to provide, secure, administer, bill for, support, and improve the Products and Services, and will not use Coiled-Managed Customer Data for any unrelated purpose. To the extent Coiled-Managed Customer Data includes personal data, Coiled's processing of that personal data is governed by the Coiled Data Processing Agreement where one is in place between the parties. Coiled's Security Documentation is provided for informational purposes only; Coiled's contractual security obligations are set forth in this Section 6A and any applicable Order Form.

Coiled will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Coiled-Managed Customer Data in Coiled's possession or control. Such safeguards include: (i) encryption of Coiled-Managed Customer Data in transit and at rest where Coiled processes it, (ii) access controls limiting access to Coiled-Managed Customer Data to personnel with a need-to-know, including multi-factor authentication for production systems, (iii) regular review of access privileges, and (iv) maintaining processes for identifying and responding to security incidents.

If Coiled confirms unauthorized access to, loss, alteration, or disclosure of, Coiled-Managed Customer Data in Coiled's possession or control (a "Security Incident"), Coiled will notify Customer without undue delay, and in any event within seventy-two (72) hours after confirmation, and will provide Customer with information reasonably necessary to assess the impact of the Security Incident.

Upon Customer's written request during the applicable Subscription term or following expiration or termination of this Agreement, Coiled will delete reasonably identifiable Coiled-Managed Customer Data from active Coiled-controlled account and product systems within sixty (60) days, except to the extent retention is required to provide the Products and Services, by applicable law, or for billing, tax, security, backup, archival, audit, legal, or dispute-resolution purposes. Coiled is not responsible for deleting Customer-Controlled Data from Customer-controlled systems. Coiled may retain de-identified or aggregated data and records maintained under Coiled's ordinary business, support, security, operational, backup, archival, legal, audit, billing, tax, and dispute-resolution retention practices, including support correspondence, usage records, telemetry, operational records, diagnostic records, system logs, audit logs, security logs, backups, and archives. Coiled will continue to protect retained Coiled-Managed Customer Data under this Section 6A for so long as Coiled retains it.

Coiled may engage third-party sub-processors, including cloud infrastructure providers used for Coiled-operated systems, to provide the Products and Services hereunder. Coiled uses reputable third-party service providers and relies on their standard contractual, security, and data protection terms where applicable. Coiled will be directly responsible hereunder for its sub-processors' compliance with this Section 6A when using sub-processors. A current list of Coiled's sub-processors is available at https://coiled.io/coiled-subprocessors.

7.1.1 Indemnity#

Subject to the remainder of this Section, Coiled shall defend Customer against any third party claim that the Products, as provided to Customer hereunder, and exclusive of all Customer Data, infringe such third party's patent, copyright, or trade secret ("Infringement Claim"), and indemnify Customer from the resulting costs, liabilities, damages, settlements, and expenses (including, reasonable attorney's fees), in each case, that are actually paid or payable to third parties pursuant to such Infringement Claim. The foregoing obligations are expressly conditioned on Customer providing Coiled with: (a) prompt written notice of all Infringement Claims, and (b) sole control over, and reasonable cooperation (at Coiled's expense) with, the defense and/or settlement of all Infringement Claims. Coiled will not admit any wrongdoing or otherwise impose any material obligation on Customer pursuant to this Section without Customer's prior written consent.

7.1.2 Remedies#

Should any Products become, or in Coiled's opinion be likely to become, the subject of such an Infringement Claim, Coiled shall, at its option and expense, (a) procure for Customer the right to continue accessing and using the affected Products, (b) replace or modify the affected Products so that they become non-infringing, or (c) terminate Customer's access to the affected Products or features and refund the prepaid but unused fees paid for them.

7.1.3 Exclusions#

Coiled shall have no liability if the alleged infringement is based on (1) combination with non-Products, provided, however, that Third Party Products made available by Coiled with the Products and unmodified by Customer shall not be deemed to be non-Products, for purposes of the foregoing exclusion, (2) use of the Products in a manner not authorized by this Agreement or the Documentation, (3) Customer's failure to use updates, modifications, or replacements made available by Coiled that would have avoided the infringement, (4) any modification of the Product not made by Coiled, or (5) any intellectual property right owned or licensed by Customer, excluding the Products.

7.1.4 Limitation#

THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND COILED'S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

The term ("Term") of this Agreement begins on the Effective Date and continues until terminated as set forth in this Agreement. Either party may terminate this Agreement (including all related Order Forms) upon giving notice in writing to the other party if the other party (i) ceases to do business in the ordinary course without a successor, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency, which proceeding, if involuntary, is not dismissed within sixty (60) days, (iv) makes an assignment for the benefit of its creditors, or (v) commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Sections 4, 6.5, 6.6, 6A., and 7-11 (inclusive) will survive any termination or expiration of this Agreement.

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, and any such assignment in violation of this Section shall be void. Notwithstanding the foregoing, each party may assign this Agreement without consent in connection with a merger, reorganization, change of control, or sale of all or substantially all of its assets or business, provided that the assignee assumes the assigning party's obligations under this Agreement.

Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail or air mail, as appropriate, properly posted and fully prepaid, (c) sent by overnight air courier, or (d) sent by email to an address designated by the receiving party for notices, in each case to the notice address set forth in the applicable Order Form or other written agreement, or to another address designated by the receiving party.

No employee, agent, or representative of Coiled has authority to bind Coiled to any oral representations or warranty concerning the Products. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.

Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.

If any provision in this Agreement (including, without limitation, the prohibition on de-compiling or reverse engineering) is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

This Agreement, together with each applicable Order Form and any documents incorporated herein by reference, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written. Without limiting the foregoing, this Agreement supersedes (i) any terms in click-through agreements with respect to the Products and/or Services, including any agreements imposed during a vendor registration process or included in the Products, except that this Agreement does not supersede or modify the terms of any open source license applicable to Open Source Software, and (ii) any terms and conditions printed on Coiled's invoices or on Customer's purchase orders, unless such terms and conditions are expressly stated as an amendment to this Agreement and duly signed on behalf of both parties. Purchase orders are incorporated solely to define quantities, prices, and the Products and Services to be provided under this Agreement; all other terms in purchase orders are rejected.

Customer may not export or re-export the Products except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Products and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Products and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.

This Agreement is in the English language only, which shall be controlling in all respects. Any versions of this Agreement in any other language shall be for accommodation only and shall not be binding upon either party. All communications, notices, and documentation to be furnished hereunder shall be in the English language only.

The relationship of Coiled and Customer established by this Agreement is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority.

This Agreement supersedes any applicable non-disclosure agreements between the parties. The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein, (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement, or (b) in connection with the parties' ongoing business relationship, or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a "need to know" such Confidential Information.

Any Order Form or other written agreement incorporating this Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. Electronic signatures and electronic delivery have the same force and effect as delivery of an original document with original signatures.

This Agreement will be governed by the laws of the State of New York and the United States of America, without regard to conflict of law principles. The parties hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in New York, New York for resolution of any disputes arising out of this Agreement and waive all objections thereto.

"Affiliate" means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this Agreement, "control" means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.

"Authorized Subcontractor" means a subcontractor authorized by Customer to use a Product for Customer's own internal business operations and who agrees to abide by the terms of this Agreement. Customer shall be liable for any failure by such subcontractors to comply with the terms of this Agreement.

"Confidential Information" means information or materials disclosed by one party ("Disclosing Party") to the other ("Receiving Party") that are either (a) identified as confidential at the time of disclosure or (b) by their nature would reasonably be understood to be confidential. Customer Data and information regarding Coiled pricing, product roadmaps, and strategic marketing plans shall be considered Confidential Information whether or not marked or identified as such. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party, (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure, (iii) is disclosed with the prior written approval of the Disclosing Party, (iv) was independently developed by the Receiving Party without any use of Confidential Information of the Disclosing Party, or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party. Except as otherwise indicated in this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and, except as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party.

"Coiled-Managed Customer Data" means Customer Data in Coiled-controlled systems, including account, contact, authentication, billing, support, usage, telemetry, operational, log, diagnostic, and administrative information.

"Customer-Controlled Data" means Customer Data that resides in Customer's cloud environment or other systems controlled by Customer, including workload inputs, outputs, and data generated by Customer's workloads.

"Customer Data" means data, content, and other information submitted to or processed by the Products by or on behalf of Customer. Customer Data includes Customer-Controlled Data and Coiled-Managed Customer Data.

"Documentation" means Coiled's user documentation, online help, or other product documentation for the Products, as revised by Coiled from time to time.

"Effective Date" means the effective date of the first Order Form or other written agreement that incorporates this Agreement, unless the parties state a different effective date in writing.

"Open Source Software" means the open source software components that are included in or provided with the Products, each of which is licensed under the terms of its own open source license. Those open source licenses, and not this Agreement, govern Customer's use of the corresponding Open Source Software.

"Order Form" means the document executed by Coiled and Customer defining the Products and Services.

"Products" means the Coiled products listed in the applicable Order Form.

"Services" means Support and Maintenance and any other services described on an applicable Order Form.

"Subscription" means term-limited access to the Products, and any Support and Maintenance, in each case, as expressly described in the applicable Order Form.

"Support and Maintenance" means the support services set forth at https://coiled.io/coiled-support-and-maintenance-terms.

"Security Documentation" means Coiled's informational security overview published at https://coiled.io/security, as updated by Coiled from time to time. Security Documentation is informational only and does not expand Coiled's obligations under this Agreement.

"Term" shall have the meaning set forth in Section 8.

"User" means Customer's employees or Authorized Subcontractors who access or use the Product.