Fairwinds Insights Free Tier Agreement
1. The Fairwinds Insights Free Tier Agreement (“Agreement”) contains the terms and conditions that govern the use of Fairwinds Insights Free Tier (“Free Tier”), which includes a feature-limited version of the SaaS Platform, Agent, and Third-Party Tools. You (“User”) have a limited license (as detailed in Section 5) to access and use the Free Tier and implement the accompanying software available within the Free Tier. Fairwinds may or may not provide you with support assistance while using the Free Tier in its sole discretion.
2. If User is an individual using the Free Tier for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If User is using the Free Tier Services on behalf of an legal entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
3. The Free Tier is software developed and offered by Fairwinds and incorporates the SaaS Platform, Agent, and Third-Party Tools. The Free Tier is delivered to the Customer in the form of Software-as-a-Service that may require software to be downloaded on systems owned or operated by the Customer (“Customer Systems”). For each Customer who wishes to use the Free Tier, Customer will provide Fairwinds with an email address and Fairwinds will send an email to that address providing the Customer with onboarding and setup instructions. The Free Tier includes a software Agent that can be deployed in the Customers’ Kubernetes cluster(s) if and when Customer manually authorizes that deployment via the interface and/or instructions available in the Free Tier. Customer is solely responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of the Free Tier.
4. The Customer acknowledges that it must only belong to a single Insights Organization in the Free Tier. An Insights Organization represents a single legal entity, or an individual Customer. A legal entity may only have one active Insights Organization on the Free Tier.
5. Fairwinds owns the Free Tier and accompanying Documentation and Customer receives no additional rights or licenses.
a. Subject to and conditioned on Customer’s compliance with this Agreement, Fairwinds grants to Customer (a) a limited, non-exclusive, non-transferable, worldwide, royalty-free, revocable license during the Term to access and use the Free Tier and/or (b) a non-exclusive, non-transferable, revocable right during the Term to download, store and use a single production copy of Free Tier that can be downloaded onto Customer Systems, connected to a single database or datastore, running on a single physical or virtual server, during the Term and solely for the permitted uses. Customer acknowledges that Fairwinds owns all right, title and interest in and to the Free Tier, including in each case all associated Intellectual Property rights.
b. “Permitted Use” means (a) accessing copying, performing, displaying, modifying, distributing and transmitting the means information created by Fairwinds and made available to Customer (“Fairwinds Content”) for use internal to the Customer only and (b) using and displaying the Fairwinds Marks in the manner dictated by Free Tier. The Permitted Use includes the right and license to print physical copies of Fairwinds Content for use solely by Customer’s Users. The Permitted Use excludes the conduct set forth in Section 5(c) (“Use Restrictions”).
c. Use Restrictions. Customer will use the Free Tier consistent with this Agreement, the Documentation and applicable laws, and will use commercially reasonable efforts to prevent unauthorized access to or use of the Free Tier and will notify Fairwinds promptly of any such unauthorized access or use. Customer will not at any time during or after the Term, directly or indirectly: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Free Tier, or disclose any of them to any third parties without compensation; (b) use the Free Tier to store, use or transmit material in violation of third-party privacy or Intellectual Property rights; (c) use the Free Tier to store or transmit code, files, scripts, agents or programs intended to do harm, including any Malicious Code, for example, viruses, worms, time bombs and Trojan horses, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Fairwinds owns, leases or controls; (d) interfere with or disrupt any aspect of the Free Tier’s integrity or performance; € gain unauthorized access to the Free Tier; (f) access or use any Fairwinds’ Intellectual Property except as this Agreement allows; (g) modify, copy, or create derivative works based on the Free Tier or any part of either of them; (h) frame or mirror any part of the Free Tier, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation; (i) remove or modify any attributions, proprietary marks or notices that Fairwinds may include in the Free Tier, including any attributions, property marks or notices relating to Third-Party Tools or to Fairwinds; (j) use the Free Tier in a way not expressly authorized by this Agreement; or (k) disassemble, reverse engineer, or decompile any part of the Free Tier to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Free Tier, (3) copy any ideas, features, functions or graphics of the Free Tier or (4) determine whether the Free Tier are within the scope of any patent.
d. Documentation License. Subject to this Agreement, Fairwinds hereby grants to Customer and each User a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with their use of the Free Tier.
e. Suspension. Fairwinds may temporarily suspend Customer’s and any User’s access to any part or all of the Free Tier: (i) if Fairwinds reasonably determines that (A) there is a threat or attack on any of the Free Tier; (B) Customer’s or any User’s use of the Free Tier disrupts or poses a security risk to the Free Tier, any other products of Fairwinds, or to any other customer or vendor of Fairwinds; (C) Customer or any User uses the Free Tier for fraudulent or illegal activities; (D) Customer becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or € Fairwinds’ provision of the Free Tier to Customer or any User is or becomes prohibited by applicable law; (ii) if any vendor of Fairwinds has suspended or terminated Fairwinds ‘s access to or use of any Third-Party Tools required to enable Customer to access the Free Tier; (iii) on receipt of a court order or law enforcement request directing such suspension; or (iv) if Customer is in default of any payment obligation to Fairwinds under this Agreement for 30 or more days (any such suspension described in subclause (i), (ii), (iii) or (iv), a “Suspension”). Fairwinds will use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Insights Application following any Suspension. Fairwinds shall use commercially reasonable efforts to resume providing access to the Free Tier as soon as reasonably possible after the event giving rise to the Suspension is cured. Fairwinds will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Suspension.
f. Modification and Discontinuance. Fairwinds may modify or discontinue the Free Tier at any time during the Term, with or without prior notice to Customer, and Fairwinds will not be liable to Customer or to any third party for any such modification. It may be necessary for Fairwinds to perform repairs or maintenance or remotely patch or upgrade the Free Tier, which may temporarily degrade the quality of the Free Tier or the Fairwinds Content or result in a partial or complete outage of the Free Tier. Fairwinds may also discontinue the inclusion of some or all Third-Party Tools in the Free Tier to the extent that their respective owners or publishers discontinue them or stop making them available to Fairwinds.
g. Feedback. Fairwinds may allow Customer to provide Fairwinds with comments or suggestions about Fairwinds or the Free Tier (“Feedback”). Customer hereby grants Fairwinds a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Free Tier or as Fairwinds may otherwise deem appropriate.
h. Reservation. All right, title, and interest in the Intellectual Property embodied in the Free Tier, the Fairwinds Content and the Fairwinds Marks are and shall remain solely the property Fairwinds or, in the case of Third-Party Tools, to the owner or licensor of such Intellectual Property. Any and all Intellectual Property rights in Third-Party Materials belong to their respective owners. Customer will have no rights in the Free Tier except as this Agreement expressly grants. This Agreement provides Customer, and its Users, with no licenses, ownership or rights other than those expressly provided herein.
6. The Free Tier is provided “as is” without warranty of any kind. Fairwinds disclaims all warranties to Customer and to all Users and to any third party, whether express, implied or statutory, regarding the Free Tier, including without limitation any implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Fairwinds also disclaims any warranty that the Free Tier will be uninterrupted, error-free, virus-free, or secure and that Customer’s use of the Free Tier will produce any particular business result or protect Customer Systems will be protected from attack. Fairwinds does not provide any warranties regarding any Third-Party Tools. Any warranty on Third-Party Tools will only be provided by their respective providers. Customer assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Fairwinds’s gross negligence or willful misconduct.
7. Fairwinds may monitor Customer’s and Users’ use of the Free Tier and collect and compile Aggregated Statistics. Fairwinds may (a) make Aggregated Statistics publicly available for marketing and/or sales purposes in compliance with applicable law (except where doing so would violate this Agreement’s confidentiality obligations or applicable law) provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information and (b) use Aggregated Statistics for internal business purposes to the extent and in the manner permitted under applicable law. Fairwinds will have and retain all right, title, and interest in Aggregated Statistics and all intellectual property rights therein, and Fairwinds may use Customer Data that is input into the Free Tier to compile Aggregated Statistics. “Aggregated Statistics” means data and information related to Customer’s use of the Free Tier that is used by Fairwinds in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Free Tier.
8. Customer shall not copy, reverse engineer, export/re-export the Free Tier or Intellectual Property. Customer shall not publish or disclose to third parties the performance/functionality of the Free Tier or the results of any benchmarking, testing, or other analyses relating to the Free Tier.
9. You will not exceed the limitations of the Free Tier, such as Node limits, Repository limits, Cluster limits, Data Retention limits, or any other limits defined in the Documentation. Repetitive violations may terminate access to the Free Tier, including deletion of the Organization and accompanying data, in the sole discretion of Fairwinds.
10. (a) Fairwinds shall not be liable to Customer or to any third party for any incidental, indirect, punitive, special or consequential damages relating to this Agreement and (b) Fairwinds’s aggregate liability for any and all claims relating to or arising from this Agreement under any theory will not exceed $100.00 USD. Fairwinds will have no liability to any third party for any losses or damages under any theory of liability. The limitations in this Section 10 will apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise, and regardless of the person bringing the claim. Fairwinds shall not be responsible for any data loss, corruption, or damages or losses of any kind to the Customer Systems.
11. This Agreement begins on the day that Customer clicks “Submit” and terminates one month later (the “Term”) unless terminated earlier or extended pursuant to the terms of this Agreement. Unless otherwise terminated earlier, this Agreement will automatically renew for successive one-month periods after the initial Term’s end. Fairwinds or Customer may terminate Term of access to the Free Tier at any time for any reason or no reason with no prior notice required. Fairwinds will have no obligation to provide Free Tier to Customer or any Users after the effective date of the termination. In the event that Customer becomes a paying Customer of Fairwinds and the Free Tier expires at such point in time, this Agreement shall automatically terminate, and you shall instead be subject to and be bound by the Fairwinds Insights Terms and Conditions upon signing the applicable Sale Order Form.
12. Customer will indemnify Fairwinds and Fairwinds’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Fairwinds Indemnitees”) from and against any Losses incurred by such Fairwinds Indemnitee resulting from any action by a third party to the extent such Losses arise out of or result from, or are alleged to arise out of or result from (A) any actions that Customer, or an User, takes or fails to take in connection with the use of the Free Tier, (B) Customer’s data, including any processing of Customer’s data by or on behalf of Fairwinds in accordance with this Agreement; (C) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User; (D) any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or € gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any User, or any third party on behalf of Customer or any User, in connection with this Agreement.
13. Customer shall be liable for all expenses incurred by Customer or any User on behalf of Customer in connection with access to and use of the Free Tier.
14. As used in this Agreement, “Confidential Information” means any information disclosed by Fairwinds or Customer, its affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and Free Tier. However, Confidential Information does not include any information that: (i) was known to the party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient. The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by applicable law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
15. Customer agrees that by clicking the “Submit” button or otherwise accessing or using the Free Tier, Customer is authorized to rightfully and legally bind itself or its legal organization to these evaluation terms and conditions, and all the obligations and restrictions set forth herein.
Definitions
“Agent” means the software made available to Customer on an optional basis through the Free Tier and deployed into one or more Kubernetes clusters or other environments controlled by Customer.
“Customer” means the individual or other legal entity agreeing and entering into this Agreement.
“Customer Data” means electronic data and information submitted by or for Customer through the Free Tier or to Third-Party Tools or other products operated by Fairwinds for use in connection with the Free Tier.
“Customer Systems” means any and all hardware, software or other systems that Customer owns, leases or controls.
“Documentation” means the document(s) that Fairwinds makes available to Customer from time to time that provide instructions for using the Free Tier.
“Fairwinds Marks” means any and all trademarks, service marks, logos or other branding owned or controlled by Fairwinds relating to the Free Tier or Fairwinds. “Fairwinds Marks” does not include any Intellectual Property of any third party.
“Free Tier” means the SaaS Platform, Agent, and Third-Party Tools, collectively.
“Insights Organization” is an entity within the SaaS Platform that holds a collection of one or many clusters, repositories, and users.
“Intellectual Property” means any and all registered and unregistered rights granted or applied for related to copyrights, patents, trademarks, trade secrets, and trade dress or other similar or equivalent intellectual property rights or forms.
“Losses” shall mean all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Node” means the sum of control plane nodes plus worker nodes, with Node usage measured hourly and the billable node count calculated monthly, on the last day of the month, by averaging the node count across all hours for that month; provided, however, that control plane nodes are not counted when the SaaS Platform is running on a Managed Kubernetes Service such as AWS AKS, Google GKE, or Azure AKS.
“Open-Source Software” means software developed by or made available for use by the open-source community, and may include including software that requires as a condition of use, modification and/or distribution of such software that other software incorporated into, derived from or distributed with such software be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributable at no charge.
“SaaS Platform” means a feature-limited version of the Software-as-a-Service product developed and hosted by Fairwinds at https://insights.fairwinds.com.
“Third-Party Tools” means unmodified software or services provided by third parties and which is provided to Customer as part of or in connection with the Free Tier. Third-Party Tools include Open-Source Software as well as proprietary software made available by third parties.
“User” means an individual who is authorized by Customer to use the Free Tier.
