Home & Student License Agreement
Home & Student License Agreement
Last modified 6 July 2023
This End User License Agreement (the “Agreement”) is entered into by and between Portainer.io Limited, an Auckland, New Zealand company with its principal place of business at 1 Boundary Road, Hobsonville, Auckland 0618, New Zealand, and the individual, who by installing the software is agreeing to this Agreement (“You”).
To be clear, by downloading, installing and/or using the software, you expressly accept and agree to the terms of this agreement.
By accepting this agreement, you agree that and warrant that any and all information you provide is true, accurate and complete.
This Agreement may be modified at any time for any reason. Amendments to this Agreement will be effective upon email notification, posting the changes online at www.portainer.io, or as a notification through the software. You must ensure that you have read, understood, and agree to the terms of this Agreement. Your continued use of the software represents your acceptance and agreement to be bound by the most recent version of this Agreement.
“Commercial Use” is the use of the licensed software for a Company’s internal business purposes. This license does not allow Commercial Use of any kind.
“Container Runtime” means software that executes and manages container images on a node.
“Documentation” means the user guide and technical specifications for the Products delivered by Portainer along with the Products as may be updated by Portainer from time to time.
“Node” A "node" can be described as a "server" (whether this is an actual physical server, a VM, a Raspberry Pi, your desktop or laptop, an industrial computer or an embedded compute device) that is capable of running containers (via Docker, Kubernetes or another orchestrator) which is either running the Portainer Server or is under the management of a Portainer Server installation.
“Open Source Software” means any third-party open source software or other similar community or free software of any type (including software code licensed under any version of the GNU GPL, Mozilla or Apache licenses).
“Open Source Use” is the non-commercial use of the licensed software to support an open source project or community.
"Order Form" means a document governing purchases of Product Subscriptions made by Company hereunder that is executed by an authorized representative of each Party.
“Ordering Document” means all Order Forms, Web Pages presented and submitted during the online order process, and/or Statements of Work, collectively and/or individually that may be used either now or in the future for the procurement of this license.
“Personal Use” is the non-commercial use of the licensed software by an individual for personal education or upskilling. This means that you may not use the software for commercial, non-profit, or revenue-generating activities.
"Product" or "Products" means Portainer’s software application(s) identified in one or more Order Form(s) to which you purchase a Subscription pursuant to the terms of this Agreement and an Ordering Document (if any).
“Product Maintenance” means the support and maintenance services to be performed by Portainer as further set forth in this Agreement.
“Subscription” means the right and license granted to Company by Portainer to use the Products in accordance with the terms of this Agreement during the specified term.
“Subscription Term” has the meaning set forth in Section 9(b) of this Agreement.
a. Provision of Products; License. Portainer shall make the Products available to you pursuant to this Agreement (and any relevant Order Forms) for the duration of the Subscription term. All Products and Documentation shall be delivered by electronic means.
b. License; Node Subscriptions. Portainer grants you a non-transferable, non-assignable (except as otherwise stated in Section 11(g)), non-sublicensable, non-exclusive, limited license to use the Products for your Personal Use only, subject to the terms of this Agreement. Portainer Home and Student subscriptions are purchased on an annual fee basis for 15 nodes. This license may not be used in an environment with more than 15 nodes in total.
c. Restrictions. You shall not (i) permit any third party to access the Products except as permitted, (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or copy the Products or otherwise seek to obtain or use the source code or non-public APIs of the Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Portainer), (iii) remove, alter or obscure any proprietary notices, labels or marks on any component or portion of the Products, (iv) market, sell, resell, rent, distribute or lease the Products, (v) use the Products and/or Deliverables for the benefit of any third party including use of the Products to operate as a service bureau, ASP, or hosting service, (vi) attempt to gain unauthorized access to the Products and/or Deliverables, or their related systems or networks, (vii) access the Products and/or Deliverables, or permit access to the Products and/or Deliverables, for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and/or (x) access the Products and/or Deliverables in order to (A) build a competitive product or service, or (B) copy any features, functions or graphics of, or data or information in, the Products.
4. PRODUCT MAINTENANCE AND SUPPORT
In regard to Product Maintenance, we will provide you with:
a) all Revisions of the Software; and
b) all new Versions of the Software at the same time as the new Version is generally released.
Technical support for the Products covered by this license is via our Community Support channels. Portainer has no obligation to support software supplied under this license directly.
5. FEES AND PAYMENT
a. Fees. You will pay all fees specified in all Ordering Documents and processes. Except as otherwise specified herein, (i) fees are based on Product Subscriptions purchased and not actual usage, (ii) all fees are non-cancelable and non-refundable. Subscription fees are based on annual periods that begin on the Subscription start date and are renewed on each anniversary of the start date.
b. Payment. The relevant License will be issued to you once payment has been made via electronic means. If for any reason the payment is later cancelled, withdrawn, clawed back or otherwise reversed, the license will be revoked immediately unless further payment is made. All fees payable under this Agreement shall be made without recoupment or set-off.
c. Taxes. Unless otherwise stated, Portainer’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (" Taxes"). Except for taxes assessable against Portainer based on Portainer’s income, You are responsible for paying all Taxes associated with your purchase hereunder. If Portainer has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to you and paid by you in accordance with Section 5(b) above, unless you provide Portainer with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Portainer, for itself and on behalf of its licensors, reserves all rights in the Products and Deliverables that are not expressly granted to you in this Agreement, and you acknowledge and agree that, except as otherwise expressly set forth in this Agreement, Portainer owns all rights, title and interest in and to the Products. All rights, title and interest in and to any and all improvements, modifications, derivative works and innovations of, to and/or involving the Products will be retained in full and owned by Portainer, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided to Portainer by you or on your behalf. You agree not to challenge, directly or indirectly, the right, title, and interest of Portainer in and to the Products, and further agree that you will not directly or indirectly, register, apply for registration, or attempt to acquire any legal protection for any of the Products.
b. Open-Source Software. The Products may incorporate certain Open-Source Software code. Ownership, use, warranty, and modification rights with respect to any such designated code shall be as expressly set forth in the applicable license pursuant to which such Open-Source Software code is governed and licensed to the public.
7. WARRANTIES AND DISCLAIMERS
a. Portainer’s Warranties. Portainer warrants that the Products shall perform materially in accordance with the Documentation.
b. Mutual Warranties. Each Party represents and warrants that (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) its execution, delivery and performance of this Agreement will not conflict with or result in a breach or other violation of any agreement or other third party obligation by which it is bound; (iii) when executed and delivered, this Agreement will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms; and (iv) it will comply with all applicable laws in its performance of this Agreement.
c. Disclaimers. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, PORTAINER MAKES NO, AND COMPANY HEREBY WAIVES AND DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE PRODUCTS, SERVICES AND DELIVERABLES CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ERROR-FREE OR UNINTERRUPTED SERVICE, AS WELL AS ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHERMORE, THE PRODUCTS, SERVICES AND DELIVERABLES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND PORTAINER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT. EXCEPT FOR AMOUNTS TO BE PAID PURSUANT TO SECTION 7, THE AGGREGATE LIABILITY OF PORTAINER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT PAID AND PAYABLE BY COMPANY TO PORTAINER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM ARISES.
9. TERM AND TERMINATION
a. Term of Agreement. This Agreement commences on the Effective Date and continues until the subscription period has expired or has been terminated.
b. Subscription Term. Subscriptions purchased by you commence on the date the license is emailed to you and continue for the Subscription term specified therein (the “Initial Term”). Except as otherwise specified or as terminated pursuant to this Agreement, all Subscriptions shall automatically renew for additional periods equal to twelve (12) months, unless either Party gives the other written notice of non-renewal at least 60 days prior to the end of the Subscription Term. The fees charged by Portainer to you for any Renewal Term shall be Portainer’s then-current fees for the Products licensed as part of the Subscription.
c. Termination. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
d. Effect of Termination. Termination of this Agreement shall not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue with respect to any act or omission before termination, or from any obligation that is expressly stated in this Agreement to survive termination.
10. GOVERNING LAW AND JURISDICTION
a. Governing Law; Jurisdiction; Jury Trial. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of New Zealand. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
a. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions when providing and using the Products. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Company shall not permit Users to access or use Products in violation of any U.S. export embargo, prohibition or restriction. Furthermore, Company will not, directly or indirectly, remove or export from the United States or allow the export or re-export of any part of the Product and/or Documentation: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
b. Relationship of the Parties. The Parties will perform hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent between the Parties.
c. Government End Users. The Products are commercial computer software. If the User or licensee of the Products is or becomes an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
d. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and the Parties acknowledge that this Agreement is intended solely for the benefit of the Parties, their successors and permitted assigns, and nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their permitted successors and assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
e. Force Majeure. Portainer shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Portainer (each a “Force Majeure Event”). Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
f. Waiver and Cumulative Remedies; Severability. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
g. Assignment. Neither Party will have the right to assign this Agreement without the written consent of the other Party; provided, however, that Portainer will have the right to assign this Agreement to an Affiliate of Portainer or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets of the business to which this Agreement relates. Any assignment in violation of the foregoing provision shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
h. Headings; Contract Interpretation. The captions to the Sections of this Agreement are not a part of this Agreement but are merely guides or labels to assist in locating and reading the Sections hereof. The terms “this Agreement,” “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation.”
i. Entire Agreement; Counterparts. This Agreement, including all exhibits and addenda hereto and all Ordering Documents, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of each Party. Unless otherwise expressly agreed in an Ordering Document, if the terms of this Agreement conflict with the terms of any Ordering Document, the terms of this Agreement will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Company’s purchase order or other order documentation (excluding Ordering Documents) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.