Opscode Hosted Chef Customer Agreement

Date of Last Revision: April 4, 2012

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU", "YOUR" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE OPSCODE HOSTED CHEF.

THIS AGREEMENT DOES NOT ALTER IN ANY WAY THE TERMS OR CONDITIONS OF ANY OTHER AGREEMENT YOU MAY HAVE WITH OPSCODE, INC. ("OPSCODE") AND NOTHING HEREIN WILL LIMIT, ALTER OR MODIFY ANY RIGHTS THAT YOU MAY HAVE TO USE ANY OPEN SOURCE VERSION OF THE OPSCODE SOFTWARE LICENSED TO YOU BY OPSCODE UNDER AND IN ACCORDANCE WITH THE TERMS OF SUCH LICENSE.

PLEASE REFER TO OUR PRIVACY NOTICE POSTED ON WWW.OPSCODE.COM , AS THE SAME MAY BE MODIFIED BY OPSCODE FROM TIME TO TIME, FOR INFORMATION ON HOW OPSCODE COLLECTS, USES AND DISCLOSES PERSONALLY IDENTIFIABLE INFORMATION FROM ITS USERS.

1. Services. This Agreement applies to your access to, and use of, the Opscode infrastructure management service ("Opscode Hosted Chef") and certain professional services, each as described further below (collectively, "Services"):

1.1. Opscode Hosted Chef Platform Access: Opscode will grant you access to, and use of, Opscode Hosted Chef that is made available to you by Opscode from to time under the terms of this Agreement.

1.2. Maintenance and Support: The following support is included in your License:

  • Support for Hosted Chef related break-fix
  • Access to private support content and forums
  • Ability to log tickets at help.opscode.com
  • Initial support response in as little as 30 minutes, depending on severity
  • 2 Incidents per month
    • Incident" means, generally, assistance from Opscode for help beyond basic understanding of Opscode products, services or features and functionality. An "Incident" is; (i) detailed analysis of customer written Chef code; (ii) debugging non-Chef libraries, gems, etc.; (iii) issues caused by Customer's Unauthorized Use. For purposes of illustration only, the following are examples of services and support that would not constitute an Incident: (i) Software bugs; (ii) issues with data/fields; (iii) feature requests; (iv) basic Chef assistance seeking to understand Opscode products, services or features and functionality
  • 6am to 6pm Pacific Time support hours, 5 days per week

1.3. Training: You may also elect to have Opscode provide a three-day "Opscode Chef Fundamentals" training course that covers the basic architecture of Chef and its associated tools. If you choose to receive the training course, it will cover the following topics:

  • Getting started with Opscode Chef
  • Anatomy of a Chef run
  • Using shared cookbooks and writing new cookbooks
  • Managing nodes by roles

  • Building real data-driven infrastructure

  • Work Product. Opscode will provide the following Work Product at the end of the training course:

    • Student guides
    • Written summaries of training labs covered during the class

2. Modifications. Opscode may change or modify this Agreement or the Service Level Agreement from time to time and post all changes at http://www.opscode.com/hosted-chef-customer-agreement and http://opscode.com/service-level-agreement. Any changes or modifications will be effective immediately upon posting of the revisions on the foregoing site. By continuing to use Opscode Hosted Chef after any changes or modifications are made, you are accepting such changes and modifications and agree to be bound to the revised Agreement(s). If you do not agree to the revised Agreement(s), you must stop using Opscode Hosted Chef.

3. Term, Termination and Suspension. The term of this Agreement begins when you agree to the terms of this Agreement by either (i) signing this Agreement; or (ii) agreeing to the Terms of Service, Customer Agreement and Service Level Agreement online at http://www.opscode.com/hosted-chef/. Unless earlier terminated as provided for elsewhere in this Agreement, this Agreement will continue on a month to month basis for as long as you remain a registered user of Opscode Hosted Chef. The term of this Agreement terminates upon any of the following actions by Opscode or by you.

3.1. Termination by You: The term of this Agreement will terminate upon 5 days' prior written notice from you. At the time of termination, there will be no refund for flat minimum payments previously made and all unpaid balances for Opscode Hosted Chef are due within 5 days.

3.2. Termination by Opscode:

(a) If your credit card is declined or expired, Opscode will provide you notice. After such notice, if you fail to provide updated billing information within 5 days, the term of this Agreement will terminate automatically.

(b) If you are being invoiced for Opscode Hosted Chef, the term of this Agreement will terminate if any payments are overdue by more than 30 days.

(c) If you materially violate this Agreement and don't take corrective action within 5 days of being given notice by Opscode, the term of this Agreement will terminate automatically.

(d) The term of this Agreement will terminate upon 30 days notice from Opscode to you.

4. Authorization to use Opscode Hosted Chef. This Agreement provides you with a limited, non-transferable, non-exclusive license to use Opscode Hosted Chef during the term of this Agreement for internal business purposes (the "License").

4.1. Opscode Responsibilities:

(a) Opscode will use commercially reasonable efforts to deliver and support Opscode Hosted Chef in a manner that meets the applicable requirements set forth in the Service Level Agreement between you and Opscode at the standard level of support or at any high level of support that you purchase from Opscode. The Service Level Agreement can be found at http://opscode.com/service-level-agreement/

(b) Opscode will provide Opscode Hosted Chef in accordance with all applicable laws and government regulations.

(c) OPSCODE HOSTED CHEF IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. OPSCODE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO OPSCODE HOSTED CHEF AND ALL INFORMATION, CONTENT AND MATERIALS INCLUDED IN OPSCODE HOSTED CHEF. OPSCODE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO QUALITY, SERVICE AVAILABILITY, OR THAT OPSCODE HOSTED CHEF WILL FUNCTION AS DESCRIBED.

4.2. Your Responsibilities:

(a) You will ensure your compliance with this Agreement and prevent unauthorized access to Opscode Hosted Chef.

(b) You will not resell Opscode Hosted Chef to a third party.

(c) You will not commercialize, reverse engineer, disassemble or decompile Opscode Hosted Chef or attempt to discover or recreate the source code.

(d) You will not store or transmit malicious code via Opscode Hosted Chef, or intentionally interfere with or disrupt the integrity of Opscode Hosted Chef in any way.

(e) You will not use Opscode Hosted Chef in a way that infringes on the right of others, or in any way that is illegal or that promotes illegal activities.

(f) You will operate Opscode Hosted Chef in accordance with all applicable laws and government regulations.

5. Data, and Security.

5.1. Your Data. Your data will consist of any usernames, resource names, host names, IP addresses, customer-specific log files, customer-specific performance data and other similar content and data you may send to Opscode as part of your use of Opscode Hosted Chef, or that may be generated from your use of Opscode Hosted Chef (the "Direct Customer Information"). Upon any termination of the term of this Agreement, you may request that your Direct Customer Information be either deleted or sent to you from Opscode provided that i) you have paid all balances owed to Opscode in full and ii) as part of retrieving your data, you pay a data transfer fee equal to the bandwidth costs charged as part of your normal use of Opscode Hosted Chef, all subject to applicable law.

5.2. Opscode Data. For purposes of this Agreement, the term "Opscode Data" will consist of (x) all information and data furnished by Opscode as part of or in connection with Opscode Hosted Chef, (y) data relating to your use of Opscode Hosted Chef only insofar as it is (i) aggregated together with all other customers of Opscode in connection with overall usage statistics for Opscode Hosted Chef, or (ii) used solely for internal business purposes. Any use of the Opscode Data described in clause (y) above shall be in a manner which does not permit identification of you as the source of such data, whether directly or indirectly.

5.3. Security. Opscode will use commercially reasonable efforts to maintain security of Direct Customer Information while on its servers, including employing all applicable industry standard measures to maintain the security of such data. If the condition, existence or format of your Direct Customer Information jeopardizes the availability of Opscode Hosted Chef or the preservation of any information or data of Opscode or a third party, Opscode reserves the right to delete such Direct Customer Information or prevent it from being uploaded. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your data. We strongly encourage You, where available and appropriate, to (a) use encryption technology to protect your Content from unauthorized access, (b) routinely archive your content, and (c) keep your applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your data.

6. Fees and Payments

6.1. Fees. You agree to pay Opscode the fees, compensation, Incident overage-charges and other amounts as specified in any Order Form or on the Opscode website. You also agree to reimburse Opscode for any reasonable expenses incurred by Opscode in the performance of the Services including, but not necessarily limited to, travel and lodging expenses. Unless otherwise specified in this Agreement, You agree pay Opscode within fifteen (15) calendar days of receipt of invoice.

6.2. Recurring, Monthly Fees. Any recurring fees, such as flat monthly minimum fees, payable by you in connection with Opscode Hosted Chef will be paid in advance by you, on or before the first of the month during which such services will be consumed.

6.3. Usage Fees. Any usage fees payable by you in connection with Opscode Hosted Chef will be charged according to the then-current fee schedules established by Opscode and payable by you within fifteen (15) days of receipt of invoice.

6.4. Collections. Opscode has the right to suspend Opscode Hosted Chef if your payments are overdue by more than 30 days. Following an account suspension, subject to applicable law, Opscode makes no guarantees as to the availability of Direct Customer Information. To re-activate Opscode Hosted Chef, you must pay any reinstatement fees specified by Opscode. In addition, on all balances overdue by more than ten days, Opscode may charge the lesser of 1.5% daily interest or the legal maximum interest rate. In such an event, you agree to pay all fees associated with the collection of overdue payments. These may include payments to collections agencies and any related attorneys fees.

6.5. Taxes. The fees payable under this Agreement do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction. You are responsible for paying all taxes, levies, duties or similar governmental assessments of any nature associated with your purchases hereunder. If Opscode has the legal obligation to pay or collect taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide Opscode with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Intellectual Property

7.1. Opscode reserves all right, title and interest, including all intellectual property rights, in and to Opscode Hosted Chef, trademarks and any other technology, Work Product and software that Opscode provides or uses to provide Opscode Hosted Chef and in any derivatives, modifications and enhancements thereto. All Opscode Data will be the sole property of Opscode, and Opscode will own exclusive rights, including all intellectual property rights, and will be entitled to the unrestricted use and dissemination of, the Opscode Data for any purpose, commercial or otherwise, without acknowledgement or compensation to you.

7.2. You reserve all right to your Direct Customer Information, but you hereby grant to Opscode a royalty-free, worldwide, transferable, sublicenseable license to use, copy, reproduce, modify and make derivative works of the Direct Customer Information in providing Opscode Hosted Chef to you in accordance with this Agreement.

7.3. You hereby grant to Opscode a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into Opscode Hosted Chef any suggestions, enhancement requests, recommendations or other feedback provided by you, including your users, relating to the operation of Opscode Hosted Chef.

7.4. During the term of this Agreement, you will not assert intellectual property claims against Opscode, nor will you assist, in any way, in the intellectual property claims of any other parties.

7.5. All recipes, work product and deliverables created or provided to You by Opscode (collectively "Work Product") shall be the exclusive property of Opscode and Opscode shall have the right to use the Work Product or any part or parts thereof as it sees fit. Opscode will grant You an irrevocable, nontransferable, nonexclusive, perpetual, world-wide right and license (the "License") to use the Work Product for Your internal business operations only. You agree that you will not (a) authorize any other party to grant any sublicense with respect to such Work Product; (b) reverse engineer, disassemble or decompile the Work Product or attempt to discover or recreate the source code to the Work Product; (c) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Work Product; or (d) engage in or permit any unauthorized use of the Work Product.

8. Limitations of Liability.

8.1. NEITHER OPSCODE NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE (EVEN IF OPSCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH OPSCODE HOSTED CHEF OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (a) THE USE OR THE INABILITY TO USE OPSCODE HOSTED CHEF; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT.

8.2. In any case, in no event will the aggregate liability of Opscode, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or related to Opscode Hosted Chef or this Agreement exceed the amount actually paid by you to Opscode hereunder for Opscode Hosted Chef.

8.3. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply to you, and you may have additional rights.

9. Indemnification. You agree to defend, indemnify and hold harmless Opscode, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any Direct Customer Information furnished by you or your use of or inability to use Opscode Hosted Chef, including without limitation any actual or threatened suit, demand or claim made against Opscode and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the Direct Customer Information, your conduct, your violation of the terms of this Agreement or your violation of the rights of any third party.

10. Notices.

10.1. All notices to Opscode under this Agreement (including notices required to be in writing) may be sent to Opscode via e-mail to legal@opscode.com .

10.2. Notices to Customer under this Agreement shall be given via e-mail to the individual designated as your "contact". It is your responsibility to keep this information up to date and communicate all changes to Opscode. Notices are deemed received on the day delivered, or if that day is not a business day, as of the beginning of the first business day following the day delivered.

11. Miscellaneous.

11.1. This Agreement and your use of Opscode Hosted Chef will be governed by and construed in accordance with the laws of the State of Washington and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to these terms.

11.2. You shall bring all disputes, actions, claims, or causes of action related to these terms or in connection with Opscode Hosted Chef and/or this Agreement only in the federal and state courts located in King County, Washington, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the terms of this Agreement.

11.3. If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect.

11.4. The failure of Opscode to enforce any right or provision in these terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Opscode in writing.

11.5. This is a services agreement and does not contemplate or create a joint venture, partnership, employment or agency relationship between you and Opscode.

11.6. The terms of this Agreement comprise the entire Agreement between you and Opscode, and supersede all prior or contemporaneous negotiations, discussions or agreements, if any, between you and Opscode, with regard to your access to and use of Opscode Hosted Chef. For purposes of clarity, however, nothing herein will alter, modify or amend in any way the Opscode terms and conditions governing your use of any Opscode website(s) or any contribution, license or other agreement between you and Opscode relating to the open source version of any Opscode software.

11.7. This Agreement by reference incorporates all applicable policies and guidelines posted on the Opscode website, as such policies and guidelines may be amended from time to time by Opscode.

11.8. Except for Opscode's rights to modify the terms of this Agreement as described above, these terms may be amended or supplemented only by a written agreement that is signed by duly authorized representatives of both parties.

11.9. Opscode will have the option to publicly reference Customer and display Customer logo and profile on Opscode.com and in press releases.

11.10. This Agreement does not alter in any way the terms or conditions of any other Agreement you may have with Opscode. In respect of Hosted Chef services only, to the extent inconsistent with any other agreement you may have with Opscode, the terms of this Agreement will govern.

11.11. In the event of a conflict between any provision of this Agreement and any other applicable agreement with Opscode, the following agreements shall govern in descending order of precedence:

(a) Fees and Other Compensation: Order, Schedule, this Agreement, Opscode Website.

(b) All Other Terms and Conditions: This Agreement, Schedule, Order, Opscode Website.