Starter / Starter Plus License Agreement
Starter / Starter Plus License Agreement
1. INTRODUCTION
This End User License Agreement (the "Agreement" or "EULA") is an Agreement between You (You) or Your Company or organization (Your Company) and Portainer.io Limited, a Company based in Auckland, New Zealand, with its main office located at 1 Boundary Road, Hobsonville, Auckland 0618, New Zealand ("Portainer," "We," "Us").
By agreeing to this Agreement, You are acting on behalf of Your Company or entity and You confirm that You have the legal authority to bind that entity.
By accepting this Agreement, You confirm that all information You provide us is true, accurate and complete. By downloading, installing, and using the software, You expressly accept the terms of this Agreement.
We reserve the right to modify this Agreement at any time for any reason but we will make every effort to notify you of any changes. Amendments to this Agreement will take effect immediately upon us doing one of the following:
- Sending you a notification email
- Posting the changes online at https://www.portainer.io/starter-license-agreement, or;
- By a notification in the software.
This Agreement is important, and it is your responsibility to read, understand, and agree to its terms. By continuing to use the software, You explicitly accept the terms of the latest version of this Agreement.
2. DEFINITIONS
These terms may be included in this Agreement. Here is what they mean:
Affiliates: refers to any entity that is controlled by, under the control of, or under common control with Your Company where “control” means ownership of, or the right to control, greater than 50% of the voting securities of such entity.
Commercial Use: is the use of the licensed software for a Company’s internal business purposes.
Container Runtime: refers to software that executes and manages container images on a node.
Contractor: refers to any third party employed by Your Company or a Company affiliate to perform services for the benefit of Your Company.
Documentation: refers to the user guide and technical specifications for our Software, delivered by Portainer along with the Software 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: refers to 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.
Our Software, The Software: refers to “Portainer Business Edition - Starter” or “Portainer Business Edition – Starter Plus” identified and described on our website and downloaded from the applicable registry
Product Maintenance: refers to the support and maintenance services performed by Portainer as explained in this Agreement.
Subscription: refers to the right and license granted to You by us to use our Software according to the terms of this Agreement, for the specified term.
Subscription Term: has the meaning described in Section 12(b) of this Agreement.
3. PRODUCTS
a. Provision of Our Software; License. We will provide our software to You under the terms of this Agreement for the entire Subscription term. Both our Software and Documentation will be delivered electronically.
b. License; Node Subscriptions. We give You a limited license to use our Software for Your internal business purposes only, subject to the terms of this Agreement. You may not transfer, assign, or sublicense our Software (except as stated in Section 14g). The license is not exclusive to You. Portainer Starter and Starter Plus subscriptions are purchased annually and may not be used with more Nodes than licensed.
c. Restrictions. You may not:- Allow any third party to access our Software except as allowed by this Agreement
- Modify, translate, reverse engineer, decompile, disassemble, create derivative works of, or copy our Software, or otherwise attempt to obtain or use the source code or non-public APIs of our Software, except to the extent expressly permitted by applicable law. If You believe that You can do any of these under an applicable law, You must give us advance written notice.
- Remove, alter, or obscure any proprietary notices, labels, or marks on any component or portion of our Software
- Market, sell, resell, rent, distribute, or lease our Software
- Use our Software for the benefit of any third party, including use of our Software to operate as a service bureau, ASP, or hosting service
- Attempt to gain unauthorized access to our Software or their related systems or networks
- Access our Software, or permit access to our Software, for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes
- Access our Software in order to build a competitive product or service, or copy any features, functions, graphics, data, or information in our Software
- Such use is strictly limited to use for the benefit of Your Company
- Your Company remains liable for the acts and omissions of any Affiliate or Contractor, and Your Company is responsible for compliance with the terms and conditions of this Agreement.
- Your Company agrees to provide a list of each Affiliate or Contractor that uses our Software for Your Company's benefit upon our written request.
We will make all revisions of our software available to You. You will get access to the newest versions of our software as soon as they are released.
Technical support for the software covered by this license is provided through our community support channels. We are not required to provide direct support for software supplied under this license.
5. FEES AND PAYMENT
a. Fees. You must pay the fees that are specified on our website and in our ordering process. The fees are based on the subscription that You have purchased and not on actual usage. You may cancel Your subscription within 7 days from Your purchase and receive a full refund of the fees. After 7 days from your purchase, no refund is available. The subscription fees are based on annual periods that begin when you complete your purchase (Start Date), and are renewed on each anniversary of the start date, unless You tell us otherwise (see section 12).
b. Payment. The License will be issued to You once payment has been made electronically. If payment is cancelled, withdrawn, clawed back or reversed, the license will be revoked unless payment is made. All fees due under this Agreement must be paid without recoupment or set-off.
c. Taxes. Portainer's fees do not include any taxes, levies, duties, or government assessments of any nature, (including value-added, sales, use, or withholding taxes, unless otherwise stated). Taxes associated with Your purchases are Your responsibility (with the exception of taxes assessable against Portainer based on our income). If we are obliged to pay or collect taxes for which You are responsible, we will invoice You the appropriate amount which should and paid by You in accordance with Section 5.2 above, unless You provide Portainer with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
a. Reservation of Rights. Portainer and its licensors retain all rights in the Software, except for the limited rights granted to You in this Agreement. You acknowledge that Portainer owns all right, title, and interest in and to our Software, except as expressly stated otherwise in this Agreement. Any improvements, modifications, derivative works, or innovations related to the Software will be owned by Portainer, even if they result from suggestions, enhancement requests, recommendations, or other feedback provided by You or on Your behalf. You agree not to dispute Portainer's right, title, or interest in the Software, and not to register, apply for registration, or seek legal protection for any of the Software.
b. Open Source Software: Our software may include Open Source components. The ownership, use, warranty and modification rights for any such designated code will be governed by the applicable license that governs and licenses such code to the public.
7. CUSTOMER REFERENCE COMMITMENT
By using the software, You have agree that we can use Your name and trademarks in Portainer's website and marketing materials. However, we will not use Your name or trademarks in any other publicity, such as press releases and customer references, without Your prior written consent.
8. CONFIDENTIALITY
a. Definition of Confidential Information. The term "Confidential Information" refers to secret or private information that is shared by one party (the "Disclosing Party") with another party (the "Receiving Party"), either through spoken or written communication. This information is either explicitly labelled as confidential or should be understood as such based on its nature and the circumstances of its disclosure. Each party's Confidential Information includes the terms and conditions of the Agreement, as well as business and marketing plans, research, development, services, customers, customer lists, designs, drawings, technology and technical information, products, product plans, software, developments, inventions, processes, formulas, finances, and business processes. Portainer's Confidential Information specifically includes our Software, and the documentation. However, Confidential Information does not include information that (i) becomes publicly known without any breach of obligation to the Disclosing Party, (ii) was already known to the Receiving Party before the Disclosing Party's disclosure, without any breach of obligation, (iii) is received from a third party without any breach of obligation, or (iv) was independently developed by the Receiving Party without using or accessing the Disclosing Party's Confidential Information.
b. Protection of Confidential Information. Except as permitted in writing by the Disclosing Party, the Receiving Party must use reasonable care to protect the Confidential Information of the Disclosing Party. The Receiving Party cannot disclose this information or use it for any purpose outside of this Agreement. Additionally, the Receiving Party must limit access to the Confidential Information of the Disclosing Party to employees, contractors, and agents who need this access for purposes consistent with this Agreement. These individuals must have signed confidentiality Agreements with the Receiving Party containing protections no less strict than those in this Agreement. The Receiving Party is fully liable for these individuals.
c. Compelled Disclosure. If the Receiving Party is legally required to disclose Confidential Information from the Disclosing Party, it may do so. However, the Receiving Party must first give the Disclosing Party written notice of the compelled disclosure (unless prohibited by law) and the Disclosing Party must pay for any reasonable assistance if they wish to contest the disclosure.
d. Injunctive Relief. Each party acknowledges that damages resulting from a breach of this Section 8 would be difficult or impossible to measure, and that there would be no adequate remedy at law in the event of such a breach. As a result, if either party breaches this Section 8, the other party will have the right to seek specific performance and injunctive or other equitable relief, in addition to any other relief available under the law or in equity. Any such relief will not replace any relief in the form of monetary damages.
9. WARRANTIES AND DISCLAIMERS
a. Portainer’s Warranties. We warrant that the software will perform materially in accordance with the Documentation.b. Mutual Warranties. Each Party agrees that:
- It has the complete legal authority and ability to enter into this Agreement and fulfil its responsibilities.
- Entering into and carrying out this Agreement will not cause any conflicts or violations with other Agreements or obligations that it is already bound by.
- Once this Agreement is signed and delivered, it becomes a legally binding obligation that can be enforced against the Party in accordance with the terms stated.
- The Party will adhere to all relevant laws while fulfilling its responsibilities under this Agreement.
c. Disclaimers. Except as specifically stated in this Agreement, Portainer does not provide any guarantees or warranties, and You (and the Company You represent) agree to waive and disclaim any and all representations or warranties regarding this Agreement or the products, services, and deliverables mentioned in it. This includes any implied warranties of merchantability (products being suitable for sale), fitness for a particular purpose, non-infringement (not violating others' rights), or error-free and uninterrupted service.
Additionally, all implied warranties that may arise from past business interactions, performance, or common industry practices are also disclaimed. It's important to note that the use of internet and electronic communications may inherently have limitations, delays, and other issues, and Portainer is not responsible for any resulting delays, delivery failures, or damages caused by such problems.
For clarity:
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.
10. INDEMNIFICATION. We will protect You from any third-party Claim alleging that the use of our software infringes or misappropriates a third party's intellectual property rights. We will indemnify You for any damages awarded against You and for reasonable attorney's fees incurred by You in connection with such a Claim. However, we will have no liability under this Agreement for any Claim based upon:
a. combination or use of the software with equipment, products, systems, software, materials, or processes not provided by us if no infringement would exist without such combination;
b. use of the software in a manner inconsistent with the Documentation; or
c. use of the Software in breach of this Agreement.
If Your use of our Software is, or is likely to be, subject to a Claim, we may:
d. procure for You the right to continue using the Software per the terms of this Agreement;
e. replace or modify the Software so that it is non-infringing and substantially equivalent in function to the Software subject to the claim; or
f. terminate Your Subscription to access and use the Software and refund any unused, prepaid fees covering the remainder of the Subscription Term after the effective date of such termination. This Section 8 states our sole liability to You, and Your exclusive remedy against us, for any type of Claim described in this Section.
11. LIABILITY CAP. Neither party is responsible for indirect, incidental, special, consequential, or exemplary damages, such as lost profits, business, or data, under any conditions (like contract, warranty, negligence, or product liability). These damages could be related to anyone, not just the parties involved, and are specifically in the context of this Agreement.
The only exceptions are the payments detailed in Section 9, or damages caused by a breach of Section 8.
In all scenarios, our total liability related to this Agreement won't exceed the total amount paid or due from the You to us in the year before the claim was made. This rule applies whether the liability comes from contract, warranty, negligence, or any other circumstance.
12. TERM AND TERMINATIONa. Term of Agreement. This Agreement begins on the purchase date and ends either when the subscription period is over or when it is terminated.
b. Subscription Term. You subscription to the software will start from the date the license is emailed to You and will continue for the duration of the Subscription term specified during the purchase process (called the "Initial Term"). Unless either Party gives written notice of non-renewal at least 60 days prior to the end of the Subscription Term or as otherwise specified in this Agreement, all Subscriptions will automatically renew for additional periods equal to twelve (12) months. The fees we charge You for any Renewal Term will be our current fees for the Software at that time.
c. Termination. Either of us 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 does not release the Parties from any liability that has already accrued or that may accrue in the future with respect to any act or omission before termination, or from any obligation that is expressly stated in this Agreement to survive termination. If this Agreement is terminated, You will immediately stop using our software and remove any copies from Your systems. Additionally, upon termination of this Agreement, each Party shall:
- immediately discontinue all access to and use of the other Party's Confidential Information (this includes our Software)
- delete the other Party's Confidential Information from its computer storage or any other media, including online and off-line libraries
- return to the other Party or, at the other Party's option, destroy, all copies of such other Party's Confidential Information then in its possession
- promptly pay any amounts that may be due.
Termination of this Agreement, regardless of cause or nature, does not affect any other rights or remedies of the Parties and does not create liability for any loss or damage caused by the termination.
12. NOTICES, GOVERNING LAW AND JURISDICTION
a. Notices. Any notice required or allowed by this Agreement must be in writing and delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by certified or registered mail, return receipt requested, upon verification of receipt; or (d) via email to the address used at purchase. Notices must be sent to the addresses provided above, and any notices sent to Portainer must be sent to the attention of the “Legal Department.” Either Party may designate a different address by providing written notice to the other Party.
b. Governing Law; Jurisdiction; Jury Trial. This Agreement will be governed by and interpreted under the laws of New Zealand. The Parties specifically renounce the applicability of, and relinquish 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 gives up their right to a trial by jury regarding any litigation or action in any way associated with this Agreement.
14. GENERAL
a. Export Compliance. Each Party must follow the laws of the United States and other relevant places when using and providing the Software. You (and Your Company) agree not to let Your Users use the Software in ways that break any U.S. export rules. You also agree not to export any part of the Software or Documentation to: (a) countries that the United States has embargoed or that support terrorists; (b) anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) any country where the United States or its agencies require a license or approval for export or re-export without getting that license or approval first; or (d) in any other way that breaks any United States or foreign export or import restrictions, laws, or regulations.b. Relationship of the Parties. The Parties will work as separate businesses. This Agreement does not create any association, partnership, joint venture, or principal-agent relationship between the Parties.
c. Government End Users. The Software is for commercial use. If You, or the user of our Software works for or becomes part of the United States Government, they can only use, copy, change, share, or move the Products and related documents, like technical data and manuals, according to a license Agreement or the terms of this Agreement. This is because of Federal Acquisition Regulation 12.212 for civilians and Defence Federal Acquisition Regulation Supplement 227.7202 for military purposes apply. The Products were made with private funding. Any other use is not allowed.
d. No Third-Party Beneficiaries. There are no other parties involved in this Agreement, and the Parties understand that this Agreement is meant only for the benefit of the Parties, their successors, and permitted assigns. No one else, besides the Parties and their permitted successors and assigns, has any legal or equitable right to enforce any of the provisions of this Agreement, whether it is expressed or implied.
e. Force Majeure. Portainer will not be held liable for any failure to perform its obligations under this Agreement if such a failure occurs due to compliance with any applicable law, acts of God, fire, strikes, embargoes, terrorist attacks, wars, insurrections, riots, or other causes beyond the reasonable control of Portainer (each a "Force Majeure Event"). Any delay resulting from any of these causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
f. Waiver and Cumulative Remedies; Severability. Neither party waives any rights by failing to exercise them under this Agreement, and the remedies provided herein are not the only ones available to a party. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, the provision will be modified by the court to best achieve the original intent to the fullest extent allowed by law, while the remaining provisions of this Agreement remain in effect.
g. Assignment. This Agreement cannot be assigned by either Party without written consent from the other Party. However, Portainer can assign this Agreement to an Affiliate of Portainer or as part of a merger, consolidation, reorganization, or sale of all or substantially all of the relevant business's assets. Any assignment that violates this provision is void and has no effect. This Agreement binds and benefits the Parties, their respective successors, and permitted assigns.
h. Headings; Contract Interpretation. The captions for the sections of this Agreement are not part of this Agreement, but are only used as guides or labels to help locate and read the sections. The terms "this Agreement", "herein", "hereof", "hereunder", and similar expressions refer to this Agreement as a whole and not to any specific section or other part of it. Unless expressly stated otherwise, references to "days" in this Agreement mean calendar days. Any use of the term "including" in this Agreement should be understood as including without limitation.
i. Entire Agreement; Counterparts. This Agreement is the complete Agreement between Portainer and You (or Your Company) and replaces all previous and concurrent Agreements, proposals, or representations, whether written or spoken. Any changes to this Agreement must be written and signed by an authorized representative of each party. No terms or conditions stated in the Company's purchase order or other order documentation shall be incorporated into or form part of this Agreement, and all such terms or conditions shall be void. This Agreement can be signed in any number of copies, each of which will be considered an original, and together, all copies will form one Agreement.
