Python agent for AppDynamics
Project description
Python agent for AppDynamics
APPDYNAMICS, INC.
END USER LICENSE AGREEMENT
1. SOFTWARE LICENSE.
1.1 LICENSE GRANT.
This End User License Agreement (this “Agreement”) between AppDynamics, Inc., a Delaware
corporation with its principal place of business located at 303 Second Street, North
Tower, 8th Floor, San Francisco, CA 94107 (“AppDynamics”) and the customer set forth in
the Order Form (as defined below) (“End User”) is effective as of the date the initial
Order Form is executed (the “Effective Date”). Subject to the terms and conditions of
this Agreement, AppDynamics hereby grants to End User, during the License Term (as
defined below), a non-exclusive, non-transferable, non-sublicensable right and license to
use the software-as-a-service and/or on-premise version of AppDynamics’ application
intelligence software product (the “Software”) designated in the sales quotation,
proposal or purchase order referencing this Agreement (the “Order Form”) for internal
business purposes only, solely within the scope of the following applicable components:
application server agents, and machine agents; in each case as specified , and for the
quantity of units in, the Order Form and one controller, or in the case of Evaluation
Use, as indicated in Section 1.3. AppDynamics Test&Dev Edition licenses shall only be
used in test-only non-production environments. For purposes hereof, the “License Term”
begins on the date AppDynamics delivers the Software license keys to End User and extends
for the period specified in the applicable Order Form (unless earlier terminated in
accordance with this Agreement). For the avoidance of doubt, End User’s affiliates (and
employees thereof) shall not use the Software without AppDynamics’ prior written consent.
Notwithstanding anything to the contrary herein, this Agreement does not supersede a
signed agreement between AppDynamics and End User with respect to the Software.
1.2 RESTRICTIONS ON USE.
Except as otherwise expressly provided in this Agreement, End User shall not (and shall
not permit any third party to): (a) sublicense, sell, resell, transfer, assign,
distribute, share, lease, rent, make any external commercial use of, outsource, use on a
timeshare or service bureau, or use in an application service provider or managed service
provider environment, or otherwise generate income from the Software; (b) copy the
Software onto any public or distributed network, except for an internal and secure cloud
computing environment; (c) cause the decompiling, disassembly, or reverse engineering of
any portion of the Software, or attempt to discover any source code or other operational
mechanisms of the Software (except where such restriction is expressly prohibited by law
without the possibility of waiver, and then only upon prior written notice to
AppDynamics); (d) modify, adapt, translate or create derivative works based on all or any
part of the Software; (e) use any Third Party Software (as defined below) other than with
the Software as provided; (f) modify any proprietary rights notices that appear in the
Software or components thereof; (g) publish the results of any benchmarking tests run on
any Third Party Software; or (h) use any Software in violation of any applicable laws and
regulations (including any export laws, restrictions, national security controls and
regulations) or outside of the license scope set forth in Section 1.1. End User shall
not export or re-export any Software or technical data or any copy, portions or direct
product thereof (i) in violation of any such laws and regulations, (ii) without all
required authorization into Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other
Group D:1 or E:2 country (or to a national or resident thereof) specified in the then
current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or
any successor supplement or regulations) or (ii) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce Department's
Table of Denial Orders. End User shall, at its own expense, obtain all necessary
customs, import, or other governmental authorizations and approvals.
1.3 EVALUATION USE.
If End User accessed the Software pursuant to a no-fee evaluation (“Evaluation Use”),
then the License Term is for the period enabled by the license key for the Software
provided by AppDynamics. AppDynamics shall have the right to downgrade, limit or
otherwise modify the Software provided for Evaluation Use at any time without notice, and
no warranty, indemnity, Maintenance or Support obligations of AppDynamics will apply to
Evaluation Use. End User may use the number and type of licenses indicated by AppDynamics
in writing prior to End User downloading or accessing the Software, which will be enabled
by End User’s specific license key. AppDynamics has the right to immediately revoke and
terminate any Evaluation Use at any time. End User represents and warrants that: (i) End
User has not previously evaluated the Software, and (ii) End User will not attempt to, by
any means, evaluate the Software again without payment. End User agrees that breach of
this provision or this Agreement may subject End User to monetary penalties, including
payment of all applicable fees as though the Software were licensed for payment.
1.4 UNAUTHORIZED USE.
End User shall notify AppDynamics promptly of any unauthorized use of any password or
account or any other known or suspected breach of security or misuse of the Software.
End User is responsible for use of the Software by any and all employees, contractors, or
other users that it allows to access the Software.
1.5 SUPPORT AND MAINTENANCE.
“Support” is defined as the responsibilities with respect to the Software as set forth in
Exhibit A (Enterprise Support). “Maintenance” means the provision of error corrections
and bug fixes for the Software, as well as new releases, updates, product extensions and
enhancements made generally commercially available by AppDynamics in its sole discretion.
Subject to End User’s payment of the fees as described herein, AppDynamics will (a)
provide Maintenance and Support for the Software in accordance with Exhibit A (Enterprise
Support), and (b) solely if End User has purchased access to the software-as-a-service
version of the Software, make the Software available to End User in accordance with
Exhibit B (Availability and Security). For annual or multi-year licenses for the Software
(as set forth in an Order Form, “Subscription Licenses”), the fees for Enterprise Support
are included in the fees for the Software set forth in the Order Form. For perpetual
licenses, (i) AppDynamics shall invoice End User the applicable fees for support and
maintenance (“Maintenance and Support Fees”) upon execution of the Order Form, and (ii)
subject to payment of the Maintenance and Support Fees, AppDynamics will provide
Enterprise Support for the Maintenance and Support period set forth in the Order Form, as
may be renewed at any time for successive terms by mutual written agreement of the
parties (including by execution of an Order Form referencing this Agreement) (the
“Maintenance and Support Term”). If Maintenance and Support terminates with respect to
any perpetual licenses, and End User is in good standing under this Agreement, then End
User may reinstate Maintenance and Support on payment of the cumulative Maintenance and
Support Fees applicable for the period during which Maintenance and Support lapsed, plus
Maintenance and Support Fees for the reinstated Maintenance and Support Term.
Notwithstanding anything herein to the contrary, if End User receives Support from an
authorized partner of AppDynamics (“Partner”), then the support terms agreed upon by End
User and such Partner shall govern in lieu of those set forth in Exhibit A, and
AppDynamics shall have no support obligations to End User.
1.6 PROFESSIONAL SERVICES.
Subject to the terms hereof (including payment of any applicable fees set forth in the
Order Form), AppDynamics shall use commercially reasonable efforts to provide the
training, enablement and/or other services (“Professional Services”) described in an
Order Form (or statement of work referencing this Agreement), if any. If not used,
pre-purchased Professional Services expire twelve (12) months after the date purchased.
End User agrees to provide reasonable cooperation and information as necessary to permit
AppDynamics to perform the Professional Services. End User will reimburse AppDynamics for
reasonable travel and expenses incurred in connection with the Professional Services (if
any) by the Invoice Due Date (as defined below). Professional Services on End User’s
premises will be performed on consecutive business days, excluding holidays and weekends.
One workday is equal to 8 hours; work on weekends or holidays equals 1.5 workdays. If End
User cancels any scheduled, on-site Professional Services less than five (5) business
days before the start date of such Professional Services, then AppDynamics will deduct
from End User's account the amount of Professional Services that were scheduled in any of
the five (5) days following the date of cancellation, and End User will fully reimburse
AppDynamics for any reasonable travel and expenses incurred by AppDynamics for such
Professional Services (and for any Professional Services rescheduled by End User) for
which AppDynamics is unable to obtain a refund. During the Term (for Subscription
Licenses) or during the Maintenance and Support Term (for perpetual licenses), and in
each case for a period of twelve (12) months thereafter, without AppDynamics’ prior
written approval, End User will not solicit for employment or consultancy any
AppDynamics’ employees who participated in the performance of Professional Services.
2. FEES.
2.1 PRICING.
End User will be invoiced for those amounts and at those prices set forth in an Order
Form (an “Invoice”), provided, however, that, for Evaluation Use, End User shall not be
billed unless otherwise specified by AppDynamics in writing prior to End User downloading
or accessing (as applicable) the Software. Fees do not include any customization of the
Software (nor support for any such customizations, unless otherwise agreed in writing).
If End User’s usage of the Software is in excess of those amounts set forth in the Order
Form, End User will be billed for those overages at a pro-rated amount for the remainder
of the Term, based on AppDynamics’ then-current standard pricing. If AppDynamics believes
in good faith that End User’s usage of the Software exceeds that set forth on the
applicable Order Form, End User agrees to allow AppDynamics to audit End User’s use of
the Software (not more frequently than twice per calendar year), upon at least
twenty-four (24) hours’ notice, to determine the actual Software use, using a
commercially reasonable auditing procedure.
2.2 PAYMENTS.
End User shall pay undisputed Invoices within thirty (30) days of the invoice date (the
“Invoice Due Date”). If End User reasonably disputes any Invoice, (i) End User shall
provide AppDynamics with written notice of such dispute, including the grounds therefore
(a “Dispute Notice”), within thirty (30) days following receipt of such Invoice, (ii) End
User and AppDynamics shall, for a period of fifteen (15) days following AppDynamics’
receipt of such Dispute Notice, negotiate in good faith to resolve the dispute and (iii)
if such dispute remains unresolved at the end of such period, the parties shall retain
all of their respective rights under this Agreement (including, without limitation, any
action for non-payment of the fees set forth herein). All payment obligations are
non-cancelable and all amounts paid are non-refundable, except (a) for amounts paid in
error that are not actually due under this Agreement, and (b) as set forth in Sections
6.1 and 7.1. The fees paid by End User are exclusive of all taxes, levies, or duties
imposed by taxing authorities, if any, and End User shall be responsible for payment of
all such taxes, levies, or duties, excluding taxes based on AppDynamics’ income. End
User represents and warrants that the billing and contact information provided to
AppDynamics is complete and accurate, and AppDynamics shall have no responsibility for
any Invoices that are not received due to inaccurate or missing information provided by
End User. End User shall pay interest on all payments not received by the Invoice Due
Date at a rate of one percent (1%) per month or the maximum amount allowed by law,
whichever is lesser. Following written notice, AppDynamics shall be entitled to suspend
End User’s access to the Software if payments are not received within thirty (30) days of
the Invoice Due Date. Notwithstanding anything herein to the contrary, if End User makes
its payments pursuant to this Agreement to a Partner, then the payment terms agreed upon
by End User and such Partner shall govern to the extent anything in this Section 2
conflicts with such Partner payment terms.
3. CONFIDENTIALITY
3.1 SCOPE AND RESTRICTIONS.
"Confidential Information" means all information of a party ("Disclosing Party")
disclosed to the other party ("Receiving Party") that is designated in writing or
identified as confidential at the time of disclosure or should be reasonably known by the
Receiving Party to be confidential due to the nature of the information disclosed and the
circumstances surrounding the disclosure. The terms of this Agreement, any technical or
other documentation relating to the Software, logins, passwords and other access codes
and any and all information regarding AppDynamics’ business, products and services are
the Confidential Information of AppDynamics. The Receiving Party will: (i) not use the
Disclosing Party’s Confidential Information for any purpose outside of this Agreement;
(ii) not disclose such Confidential Information to any person or entity, other than its
affiliates, employees, consultants, agents and professional advisers who have a “need to
know” for the Receiving Party to exercise its rights or perform its obligations
hereunder, provided that such employees, consultants, and agents are bound by agreements
or, in the case of professional advisers, ethical duties respecting such Confidential
Information in accordance with the terms of this Section 3; and (iii) use reasonable
measures to protect the confidentiality of such Confidential Information. If the
Receiving Party is required by applicable law or court order to make any disclosure of
such Confidential Information, it will first give written notice of such requirement to
the Disclosing Party, and, to the extent within its control, permit the Disclosing Party
to intervene in any relevant proceedings to protect its interests in its Confidential
Information, and provide full cooperation to the Disclosing Party in seeking to obtain
such protection. Further, this Section 3 will not apply to information that the
Receiving Party can document: (i) was rightfully in its possession or known to it prior
to receipt; (ii) is or has become public knowledge or publicly available through no fault
of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third
party without breach of any confidentiality obligation; or (iv) is independently
developed by employees of the Receiving Party who had no access to such information.
3.2 EQUITABLE RELIEF.
The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s
Confidential Information could cause substantial harm to the Disclosing Party for which
damages alone might not be a sufficient remedy and, therefore, that upon any such
disclosure by the Receiving Party the Disclosing Party will be entitled to seek
appropriate equitable relief in addition to whatever other remedies it might have at law
or equity.
4. PROPRIETARY RIGHTS. AppDynamics and its suppliers own and shall retain all proprietary
rights, including all copyright, patent, trade secret, trademark and all other
intellectual property rights, in and to the Software and the results of any Professional
Services. End User acknowledges that the rights granted under this Agreement do not
provide End User with title to or ownership of the Software. Certain “free” or “open
source” based software (the “FOSS Software”) and third party software (the “Third Party
Software”) is shipped with the Software but is not considered part of the Software
hereunder. A list of the FOSS Software and Third Party Software is set forth on the
webpage located at http://www.appdynamics.com/open-source. With respect to Third Party
Software included with the Software, such Third Party Software suppliers are third party
beneficiaries of this Agreement. End User’s use of such FOSS Software is subject to the
terms of the licenses set forth on such webpage. The Software and Third Party Software
may only be used by End User as prescribed by the AppDynamics documentation located at
http://docs.appdynamics.com (as it may be updated from time to time, the “Documentation”).
5. TERM AND TERMINATION.
The initial term of this Agreement begins on the Effective Date and extends for the
period specified in the Order Form (or if the Software is provided for Evaluation Use,
for the Term specified in Section 1.3 hereof) (unless earlier terminated, the “Term”).
However, this Agreement may be renewed at any time for successive terms by mutual written
agreement of the parties (including by execution of an Order Form referencing this
Agreement) and each such renewal will be deemed part of the “Term” hereunder. With
respect to each Order Form, (i) each Subscription License contained therein shall
automatically renew for additional License Terms of the same duration and at a price
equal to the then-current list price less the discount contained in the renewing Order
Form; and (ii) for perpetual licenses contained therein, the Maintenance and Support Term
will automatically renew for additional periods of the same duration and at the same
Maintenance and Support Fees; in each case, excluding any items sold at no cost and/or
other discounts containing the words "one-time", and unless either party requests
termination by written notice at least thirty (30) days prior to the end of the
then-current term. Any such renewal terms shall be deemed part of the License Term or
Maintenance and Support Term, as applicable. If either party fails to comply with any
provision of this Agreement, and such breach has not been cured within thirty (30) days
after receipt of written notice thereof, the non-breaching party may terminate this
Agreement, except that AppDynamics may immediately terminate this Agreement and/or End
User’s license to the Software upon End User’s breach of Section 1.2. Upon expiration or
termination of this Agreement for any reason, (i) with respect to Subscription Licenses,
End User shall cease any further use of and destroy any copies of the Software and
Documentation within End User’s possession and control and (ii) each Receiving Party will
return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential
Information in the Receiving Party’s possession or control. All fees that have accrued
as of such expiration or termination, and Sections 1.2, 1.3, 1.4, 2, 3, 4, 5, 6.2 and 7
through 12, will survive any expiration or termination hereof.
6. WARRANTIES.
6.1 LIMITED WARRANTY.
AppDynamics warrants that (a) with respect to software-as-a-service Software licenses,
during the License Term, or (b) with respect to on-premise Software licenses, during the
first thirty (30) days following the date the Software is purchased, the Software will,
in all material respects, conform to the functionality described in the then-current
Documentation for the applicable Software version. AppDynamics’ sole and exclusive
obligation, and End User’s sole and exclusive remedy, for a breach of this warranty shall
be that AppDynamics shall be required to use commercially reasonable efforts to modify
the Software to conform in all material respects to the Documentation, and if AppDynamics
is unable to materially restore such functionality within thirty (30) days from the date
of written notice of such breach, End User shall be entitled to terminate this Agreement
upon written notice and receive a pro-rata refund of the Software license fees (or
Maintenance and Support Fees, for perpetual licenses) that have been paid in advance for
the remainder of the License Term for the applicable Software (beginning on the date of
termination).
6.2 WARRANTY DISCLAIMER.i
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL SOFTWARE, DOCUMENTATION, MAINTENANCE
AND SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND APPDYNAMICS AND ITS
SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT,
OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR
OPERATION OF THE SOFTWARE. APPDYNAMICS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE
ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH
THE SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT, OR PROFESSIONAL SERVICES.
7. INDEMNIFICATION.
7.1 BY APPDYNAMICS.
AppDynamics agrees to defend, at its expense, End User against any third party claim to
the extent such claim alleges that the Software infringes or misappropriates any patent,
copyright, trademark or trade secret of a third party, and AppDynamics shall pay all
costs and damages finally awarded against End User by a court of competent jurisdiction
as a result of any such claim. In the event that the use of the Software is, or in
AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at
its option and expense, may (a) replace the applicable Software with functionally
equivalent non-infringing technology, (b) obtain a license for End User’s continued use
of the applicable Software, or (c) terminate the license and provide a pro-rata refund of
the Software license fees (or Maintenance and Support Fees, for perpetual licenses) that
have been paid in advance for the remainder of the License Term for the applicable
Software (beginning on the date of termination). The foregoing indemnification obligation
of AppDynamics will not apply: (1) if the Software is modified by End User; (2) if the
Software is combined with other non-AppDynamics products, applications, or processes, but
solely to the extent the alleged infringement is caused by such combination; or (3) to
any unauthorized use of the Software. The foregoing shall be End User’s sole remedy with
respect to any claim of infringement of third party intellectual property rights.
7.2 BY END USER.
End User agrees to defend, at its expense, AppDynamics, its affiliates, suppliers and
resellers against any third party claim to the extent such claim arises from End User’s
breach of Section 1 or End User’s negligence or willful misconduct, and End User shall
pay all costs and damages finally awarded against AppDynamics by a court of competent
jurisdiction as a result of any such claim.
7.3 INDEMNIFICATION REQUIREMENTS.
In connection with any claim for indemnification under this Section 7, the indemnified
party must promptly provide the indemnifying party with notice of any claim that the
indemnified party believes is within the scope of the obligation to indemnify, provided,
however, that the failure to provide such notice shall not relieve the indemnifying party
of its obligations under this Section 7, except to the extent that such failure
materially prejudices the indemnifying party’s defense of such claim. The indemnified
party may, at its own expense, assist in the defense if it so chooses, but the
indemnifying party shall control the defense and all negotiations related to the
settlement of any such claim. Any such settlement intended to bind either party shall
not be final without the other party’s written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, however, that End User’s consent
shall not be required when AppDynamics is the indemnifying party if the settlement
involves only the payment of money by AppDynamics.
8. LIMITATION OF LIABILITY.
8.1 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON
USE) OR EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR
LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON
USE), EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY) OR EACH PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY’S LIABILITY FOR ANY
DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT
LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID
(PLUS FEES PAYABLE) TO APPDYNAMICS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING
THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. FORCE MAJEURE.
Except for payment obligations, neither party hereto will be liable for defaults or
delays due to acts of God, or the public enemy, acts or demands of any government or
governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes
beyond its control and not due to its fault or negligence.
10. DATA COLLECTION.
AppDynamics’ application server and machine software agents (the “Agents”) collect
metrics that relate to the performance, health and resource of an application, its
components (transactions, code libraries) and related infrastructure (nodes, tiers) that
service those components. In addition, AppDynamics may collect metrics on End Users’
activities, such as web pages visited, length of visit, and which features of the
Software an End User uses. End User will not configure the Software to collect any
personally-identifiable information or payment information (“Personal Data”) without
AppDynamics’ prior written approval, and End User will indemnify AppDynamics for
reasonable costs and other amounts that AppDynamics may incur relating to any breach of
the foregoing. For more information on AppDynamics’ policies and technical information
regarding Personal Data, please visit:
https://legal.appdynamics.com/AppDynamics_SaaS_Data_Privacy_Information.pdf.
11. US GOVERNMENT MATTERS.
As defined in FAR section 2.101, the Software and Documentation are “commercial items”
and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial
computer software” and “commercial computer software documentation.” Consistent with
DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction,
release, performance, display, or disclosure of such commercial software or commercial
software documentation by the U.S. Government will be governed solely by the terms of
this Agreement and will be prohibited except to the extent expressly permitted by the
terms of this Agreement.
12. MISCELLANEOUS.
This Agreement shall be governed by and construed under the laws of the State of
California, U.S.A. The parties consent to the exclusive jurisdiction and venue of the
courts located in and serving San Francisco, California. Failure by either Party to
exercise any of its rights under, or to enforce any provision of, this Agreement will not
be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If
any provision of this Agreement is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as
possible the same economic effect of the original provision and the remainder of this
Agreement will remain in full force and effect. This Agreement and its exhibits, together
with the Order Form(s) and any statements of work incorporating this Agreement, if
applicable, represent the entire agreement between the parties and supersede any previous
or contemporaneous oral or written agreements or communications regarding the subject
matter of this Agreement. The person signing or otherwise accepting this Agreement for
End User represents that s/he is duly authorized by all necessary and appropriate
corporate action to enter into this Agreement on behalf of End User. Any modification to
this Agreement must be in writing and signed by a duly authorized agent of both parties.
The Uniform Computer Information Transactions Act (UCITA) does not apply to this
Agreement. This Agreement shall control over additional or different terms of any
purchase order, confirmation, invoice or similar document, even if accepted in writing by
both parties, and waivers and amendments to this Agreement shall be effective only if
made by non-pre-printed agreements clearly understood by both parties to be an amendment
or waiver to this Agreement. For purposes of this Agreement, “including” means “including
without limitation.” The rights and remedies of the parties hereunder will be deemed
cumulative and not exclusive of any other right or remedy conferred by this Agreement or
by law or equity. No joint venture, partnership, employment, or agency relationship
exists between the parties as a result of this Agreement or use of the Software.
AppDynamics reserves the right to perform its obligations from locations and/or through
use of affiliates and subcontractors, worldwide, provided that AppDynamics will be
responsible for such parties. This Agreement may not be assigned by either party without
the prior written approval of the other party and any purported assignment in violation
of this section shall be void; provided, however, that either party may assign this
Agreement in connection with the transfer, directly or indirectly, of more than fifty
percent (50%) of such party’s outstanding voting securities or of all or substantially
all of the assets or business of such party (a “Change in Control”); provided, further,
that AppDynamics may assign this Agreement to any of its affiliates. Upon any assignment
of this Agreement by End User in connection with a Change in Control, any licenses that
contain an “unlimited” feature will, with respect to End User or the successor entity, as
applicable, be capped at the number of authorized Software units in use immediately prior
to such Change in Control. End User agrees that AppDynamics may refer to End User by
trade name and logo, and may briefly describe End User’s business, in AppDynamics’
marketing materials and website. AppDynamics may give notice to End User by electronic
mail to End User’s email address on record in End User’s account information, or by
written communication sent by first class mail or pre-paid post to End User’s address on
record in End User’s account information. End User may give notice to AppDynamics at any
time by any letter delivered by nationally recognized overnight delivery service or first
class postage prepaid mail to AppDynamics at the following address or such other address
as may be notified in writing to End User from time to time: AppDynamics, Inc., 303
Second Street, North Tower, 8th Floor, San Francisco, CA 94107, Attn: Legal Department.
Notice under this Agreement shall be deemed given when received, if personally delivered;
when receipt is electronically confirmed, if transmitted by email; the day after it is
sent, if sent for next day delivery by recognized overnight delivery service; and upon
receipt, if sent by certified or registered mail, return receipt requested.
EXHIBIT A
ENTERPRISE SUPPORT
GENERAL REQUIREMENTS.
AppDynamics will provide access to a ticketing system and email address
(help@appdynamics.com), which will be available twenty-four (24) hours per day, seven (7)
days per week. The email account will be maintained by qualified support specialists, who
shall use commercially reasonable efforts to answer questions and resolve problems
regarding the Software.
HOURS OF OPERATION.
Support is available (24) hours per day, seven (7) days per week.
ERROR CLASSIFICATION.
Any reported errors are classified in the following manner, in each case when caused by
the Software:
Error Classification Criteria
==================== ========
Urgent End User production application is down or there is a
major malfunction, resulting in a business revenue loss and
impacting the End User application functionality for a
majority of users.
High Critical loss of End User application functionality or
performance, impacting the application functionality for a
high number of users.
Normal Moderate loss of End User application functionality or
performance, impacting multiple users.
Low Minor loss of End User application functionality or
product feature in question.
ERROR DEFINITION.
An “error” means a reproducible malfunction in the Software that is reported by End User
through AppDynamics’ ticketing system that prevents the Software from performing in
accordance with the operating specifications described in the then-current Documentation.
AUTHORIZED SUPPORT CONTACTS.
Maintenance and Support will be provided solely to End User’s authorized support
contacts. The Order Form may indicate a maximum number of authorized support contacts for
End User’s service level. End User will be asked to designate its authorized support
contacts, including its primary email address.
END USER’S OBLIGATION TO ASSIST.
If End User reports a purported error in the Software to AppDynamics, AppDynamics’
ticketing system will request the following minimum information:
A general description of the operating environment
A list of all hardware components, operating systems and networks
A reproducible test case
Any log files, trace and systems files
End User’s failure to provide this information may prevent AppDynamics from or
significantly delay AppDynamics’ ability to identify and fix the reported error, and
AppDynamics’ time to respond to any error will begin when AppDynamics has received all
requested information from the End User and is able to reproduce the error.
ERROR RESOLUTION.
If AppDynamics determines there is an error in the Software, AppDynamics may, at its sole
option, repair that error in the version of the Software that End User is currently using
or instruct End User to install a newer version of the Software with that error repaired.
AppDynamics reserves the right to provide End User with a workaround in lieu of fixing an
error.
SOFTWARE UPDATES AND UPGRADES. End User must be current on fees in order to receive
access to Maintenance.
RESPONSE TIME. AppDynamics shall use commercially reasonable efforts to respond to error
tickets in accordance with the tables set forth below. AppDynamics will use reasonable
means to repair the error and keep End User informed of progress. AppDynamics makes no
representations as to when a full resolution of the error may be made.
Error Initial Response Manager Escalation VP Escalation Email Status Updates
===== ================ ================== ============= ====================
Urgent 4 Hours 1 Business Day 1 Week Daily
High 12 Hours 1 Week 2 Weeks Weekly
Normal 1 Business Day Quarterly Review None None
Low 2 Business Days Semi-Annual Review None None
END OF LIFE POLICY: Support is provided for the Software version 3.5 and later. The
AppDyanamics’ End of Life Policy is as follows:
• “Mainstream Support”: support calls are accepted and the version is maintained with bug
fix releases and patches.
• “Extended Support”: support calls are accepted however the version is not maintained.
• “Out of Support”: no support calls are accepted and the version is not maintained.
AppDynamics provides Extended Support for a period of 24 months after a Software
version’s release. AppDynamics provides Mainstream Support for a period of 12 months
after a version’s release. For example, if version 4.0 was released in December of 2014,
Mainstream Support would be provided until December of 2015. Extended Support would be
provided until December of 2016. The Software version 4.0 would be Out of Support
beginning in January of 2017. For clarity, Support is version-based; if End User upgraded
to version 5.0 in January of 2017 when version 5.0 was released, Mainstream Support would
be provided for version 5.0 beginning in January of 2017. AppDynamics does not provide
Maintenance or Support for any customized software (or components thereof).
For third party software or technology used by End User with the Software but not
included with the Software (a “Platform”, such as Java Virtual Machines), AppDynamics
will follow the EOL support timeline announced by the third party vendor of such
Platform. AppDynamics will drop support for an EOL’d Platform version when the Platform
vendor stops supporting that Platform version
EXHIBIT B
AVAILABILITY AND SECURITY
The terms set forth in this Exhibit B apply only if End User has purchased access to the
online software-as-a-service (“SaaS”) version of the Software, as indicated on the Order
Form.
AVAILABILITY.
AppDynamics will use commercially reasonable efforts to (a) provide bandwidth sufficient
for End User's use of the Software provided hereunder and in an applicable Order Form and
(b) operate and manage the Software with a ninety-nine and one-half percent (99.5%)
uptime goal (the “Availability SLA”), excluding situations identified as “Excluded”
below. For purposes of the Availability SLA, the AppDynamics network extends to,
includes and terminates at the data center located router that provides the outside
interface of each of AppDynamics’ WAN connections to its backbone providers (the
“AppDynamics Network”).
Excluded" means any outage that results from any of the following:
a. Any Maintenance performed by AppDynamics during AppDynamics’ standard Maintenance
windows. AppDynamics will notify End User within forty-eight (48) hours of any standard
Maintenance and within twenty-four (24) hours for other non-standard emergency
Maintenance (collectively referred to herein as “Scheduled Maintenance”).
b. End User's information content or application programming, or the acts or omissions of
End User or its agents, including, without limitation, the following:
1. End User’s use of any programs not supplied by AppDynamics;
2. End User’s failure to provide AppDynamics with reasonable advance prior notice of
any pending unusual large deployments of new nodes (i.e., adding over ten (10) percent
total nodes in less than twenty-four (24) hours);
3. End User’s implementation of any significant configuration changes, including
changes that lead to a greater than thirty percent (30%) change in a one week period or
greater than fifty percent (50%) change in a one month period in the number of key
objects in the system including but not limited to metrics, snapshots, nodes, events and
business transactions;
4. Any misconfiguration by End User (as determined in AppDynamics’ sole discretion),
including configuration errors and unintended usage of the Software; and
5. End User’s failure to upgrade the AppDynamics Agents to keep the Agent versions
within six (6) months of the controller version.
c. Force majeure or other circumstances beyond AppDynamics’ reasonable control that could
not be avoided by its exercise of due care.
d. Failures of the Internet backbone itself and the network by which End User connects to
the Internet backbone or any other network unavailability outside of the AppDynamics
Network.
e. Any window of time when End User agrees that Software availability/unavailability will
not be monitored or counted.
f. Any problems resulting from End User combining or merging the Software with any
hardware or software not supplied by AppDynamics or not identified by AppDynamics in the
Documentation as being compatible with the Software.
g. End User’s or any third party’s use of the Software in an unauthorized or unlawful
manner.
Remedies for Excessive Downtime:
In the event the availability of the Software falls below the Availability SLA in a given
calendar quarter, AppDynamics will pay End User a service credit (“Service Credit”) equal
to the percentage of the fees set forth in the table below corresponding to the actual
Availability of the Software during the applicable calendar quarter (on pro-rated basis
for annual fees). Such Service Credit will be issued as a credit against any fees owed
by End User for the next calendar quarter of the Term, or, if End User does not owe any
additional fees, then AppDynamics will pay End User the amount of the applicable Service
Credit within thirty (30) days after the end of the calendar quarter in which such credit
accrued. To receive Service Credits, End User must submit a written request to
AppDynamics (to customersuccess@appdynamics.com with a copy to legal@appdynamics.com)
within 15 days after the end of the quarter in which the Software was unavailable, or End
User’s right to receive Service Credits with respect to such unavailability will be
waived. The remedies stated in this section are End User’s sole and exclusive remedies
and AppDynamics’ sole and exclusive obligations for service interruption or
unavailability.
System availability is measured by the following formula: x = (n - y) *100 / n
(1) “x” is the uptime percentage; “n” is the total number of hours in the given calendar
quarter minus scheduled downtime; and “y” is the total number of downtime hours in the
given calendar quarter.
(2) Specifically excluded from "n and "y" in this calculation are the Excluded
situations described above and scheduled upgrade and maintenance windows.
Software Availability Percentage of Quarterly Software Fees Credited
> 99.5% 0%
95.0% - < 99.5% 5% (max of $280)
90.0% - < 95.0% 10% (max of $560)
80.0% - < 90.0% 20% (max of $840)
70.0% - < 80.0% 30% (max of $1120)
60.0% - < 70.0% 40% (max of $1400)
< 50% 50% (max of $2800)
SECURITY INFORMATION.
End User Account Login: For Software user interface access, AppDynamics uses TLS 1.0 with
AES 256 bit encryption, terminated at the server to ensure end-to-end security over the
wire. AppDynamics will also restrict user interface access to End User corporate networks
for additional security, except as otherwise requested by End User.
Hosting: The platform (servers, infrastructure and storage) for the Software is and will
remain hosted in one of the largest Tier III data centers in North America, specifically
designed and constructed to deliver world-class physical security, power availability,
infrastructure flexibility and growth capacity. AppDynamics’ data center provider is and
will remain SSAE 16 compliant, meaning it has been fully independently audited to verify
the validity and functionality of its control activities and processes.
Every server for the Software is and will remain operated in a fully redundant fail-over
pair to ensure high availability. Data is and will remain backed up nightly, stored
redundantly and will be restored rapidly in case of failure. AppDynamics also provides an
off-site backup service, which is available at an additional cost.
Security updates and patches are actively evaluated by engineers and will be deployed
based upon the security risks and stability benefits they offer to the Software and End
Users.
Data Access: Access to the Software platform infrastructure and data is and will be
secured by multiple authentication methods including RSA and DSA key pairs, passwords,
and network access control lists. Infrastructure and data access is and will remain
restricted to AppDynamics; employees and contractors subject to confidentiality
agreements.
For more information on use of data, please see AppDynamics’ Privacy Policy located at
http://www.appdynamics.com/privacy-policy. System and network activity for the Software
are and will remain actively monitored by a team of engineers 24/7. Failed authentication
attempts are audited and engineers will be paged immediately so that any possible
intrusion or threat can be investigated promptly. Standard firewall policies are and will
remain deployed to block all access except to ports required for Software and Agent
communication.
Data Communication: Agents will typically push data using one-way HTTP or HTTPS
connections to a single host (known as a controller), which has been allocated to one or
more End User accounts. AppDynamics also offers dedicated controllers for End Users that
require their data to be isolated (this may require payment of an additional fee).
For added security, Agents can be configured to send data using encrypted transmission by
simply selecting HTTPS port 443 and setting "controller-ssl-enabled" to true in Agent
configuration. Agents also have built in support for outbound HTTP proxies for End Users
using these security mechanisms.
AppDynamics uses random staggering on Agent data communication to the Software platform
so traffic is spread evenly to minimize bursts and spikes of network traffic from End
User’s data center to the Software platform.
AppDynamics Proprietary and Confidential * Revision 11.18.2014
APPDYNAMICS, INC.
END USER LICENSE AGREEMENT
1. SOFTWARE LICENSE.
1.1 LICENSE GRANT.
This End User License Agreement (this “Agreement”) between AppDynamics, Inc., a Delaware
corporation with its principal place of business located at 303 Second Street, North
Tower, 8th Floor, San Francisco, CA 94107 (“AppDynamics”) and the customer set forth in
the Order Form (as defined below) (“End User”) is effective as of the date the initial
Order Form is executed (the “Effective Date”). Subject to the terms and conditions of
this Agreement, AppDynamics hereby grants to End User, during the License Term (as
defined below), a non-exclusive, non-transferable, non-sublicensable right and license to
use the software-as-a-service and/or on-premise version of AppDynamics’ application
intelligence software product (the “Software”) designated in the sales quotation,
proposal or purchase order referencing this Agreement (the “Order Form”) for internal
business purposes only, solely within the scope of the following applicable components:
application server agents, and machine agents; in each case as specified , and for the
quantity of units in, the Order Form and one controller, or in the case of Evaluation
Use, as indicated in Section 1.3. AppDynamics Test&Dev Edition licenses shall only be
used in test-only non-production environments. For purposes hereof, the “License Term”
begins on the date AppDynamics delivers the Software license keys to End User and extends
for the period specified in the applicable Order Form (unless earlier terminated in
accordance with this Agreement). For the avoidance of doubt, End User’s affiliates (and
employees thereof) shall not use the Software without AppDynamics’ prior written consent.
Notwithstanding anything to the contrary herein, this Agreement does not supersede a
signed agreement between AppDynamics and End User with respect to the Software.
1.2 RESTRICTIONS ON USE.
Except as otherwise expressly provided in this Agreement, End User shall not (and shall
not permit any third party to): (a) sublicense, sell, resell, transfer, assign,
distribute, share, lease, rent, make any external commercial use of, outsource, use on a
timeshare or service bureau, or use in an application service provider or managed service
provider environment, or otherwise generate income from the Software; (b) copy the
Software onto any public or distributed network, except for an internal and secure cloud
computing environment; (c) cause the decompiling, disassembly, or reverse engineering of
any portion of the Software, or attempt to discover any source code or other operational
mechanisms of the Software (except where such restriction is expressly prohibited by law
without the possibility of waiver, and then only upon prior written notice to
AppDynamics); (d) modify, adapt, translate or create derivative works based on all or any
part of the Software; (e) use any Third Party Software (as defined below) other than with
the Software as provided; (f) modify any proprietary rights notices that appear in the
Software or components thereof; (g) publish the results of any benchmarking tests run on
any Third Party Software; or (h) use any Software in violation of any applicable laws and
regulations (including any export laws, restrictions, national security controls and
regulations) or outside of the license scope set forth in Section 1.1. End User shall
not export or re-export any Software or technical data or any copy, portions or direct
product thereof (i) in violation of any such laws and regulations, (ii) without all
required authorization into Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other
Group D:1 or E:2 country (or to a national or resident thereof) specified in the then
current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or
any successor supplement or regulations) or (ii) to anyone on the U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce Department's
Table of Denial Orders. End User shall, at its own expense, obtain all necessary
customs, import, or other governmental authorizations and approvals.
1.3 EVALUATION USE.
If End User accessed the Software pursuant to a no-fee evaluation (“Evaluation Use”),
then the License Term is for the period enabled by the license key for the Software
provided by AppDynamics. AppDynamics shall have the right to downgrade, limit or
otherwise modify the Software provided for Evaluation Use at any time without notice, and
no warranty, indemnity, Maintenance or Support obligations of AppDynamics will apply to
Evaluation Use. End User may use the number and type of licenses indicated by AppDynamics
in writing prior to End User downloading or accessing the Software, which will be enabled
by End User’s specific license key. AppDynamics has the right to immediately revoke and
terminate any Evaluation Use at any time. End User represents and warrants that: (i) End
User has not previously evaluated the Software, and (ii) End User will not attempt to, by
any means, evaluate the Software again without payment. End User agrees that breach of
this provision or this Agreement may subject End User to monetary penalties, including
payment of all applicable fees as though the Software were licensed for payment.
1.4 UNAUTHORIZED USE.
End User shall notify AppDynamics promptly of any unauthorized use of any password or
account or any other known or suspected breach of security or misuse of the Software.
End User is responsible for use of the Software by any and all employees, contractors, or
other users that it allows to access the Software.
1.5 SUPPORT AND MAINTENANCE.
“Support” is defined as the responsibilities with respect to the Software as set forth in
Exhibit A (Enterprise Support). “Maintenance” means the provision of error corrections
and bug fixes for the Software, as well as new releases, updates, product extensions and
enhancements made generally commercially available by AppDynamics in its sole discretion.
Subject to End User’s payment of the fees as described herein, AppDynamics will (a)
provide Maintenance and Support for the Software in accordance with Exhibit A (Enterprise
Support), and (b) solely if End User has purchased access to the software-as-a-service
version of the Software, make the Software available to End User in accordance with
Exhibit B (Availability and Security). For annual or multi-year licenses for the Software
(as set forth in an Order Form, “Subscription Licenses”), the fees for Enterprise Support
are included in the fees for the Software set forth in the Order Form. For perpetual
licenses, (i) AppDynamics shall invoice End User the applicable fees for support and
maintenance (“Maintenance and Support Fees”) upon execution of the Order Form, and (ii)
subject to payment of the Maintenance and Support Fees, AppDynamics will provide
Enterprise Support for the Maintenance and Support period set forth in the Order Form, as
may be renewed at any time for successive terms by mutual written agreement of the
parties (including by execution of an Order Form referencing this Agreement) (the
“Maintenance and Support Term”). If Maintenance and Support terminates with respect to
any perpetual licenses, and End User is in good standing under this Agreement, then End
User may reinstate Maintenance and Support on payment of the cumulative Maintenance and
Support Fees applicable for the period during which Maintenance and Support lapsed, plus
Maintenance and Support Fees for the reinstated Maintenance and Support Term.
Notwithstanding anything herein to the contrary, if End User receives Support from an
authorized partner of AppDynamics (“Partner”), then the support terms agreed upon by End
User and such Partner shall govern in lieu of those set forth in Exhibit A, and
AppDynamics shall have no support obligations to End User.
1.6 PROFESSIONAL SERVICES.
Subject to the terms hereof (including payment of any applicable fees set forth in the
Order Form), AppDynamics shall use commercially reasonable efforts to provide the
training, enablement and/or other services (“Professional Services”) described in an
Order Form (or statement of work referencing this Agreement), if any. If not used,
pre-purchased Professional Services expire twelve (12) months after the date purchased.
End User agrees to provide reasonable cooperation and information as necessary to permit
AppDynamics to perform the Professional Services. End User will reimburse AppDynamics for
reasonable travel and expenses incurred in connection with the Professional Services (if
any) by the Invoice Due Date (as defined below). Professional Services on End User’s
premises will be performed on consecutive business days, excluding holidays and weekends.
One workday is equal to 8 hours; work on weekends or holidays equals 1.5 workdays. If End
User cancels any scheduled, on-site Professional Services less than five (5) business
days before the start date of such Professional Services, then AppDynamics will deduct
from End User's account the amount of Professional Services that were scheduled in any of
the five (5) days following the date of cancellation, and End User will fully reimburse
AppDynamics for any reasonable travel and expenses incurred by AppDynamics for such
Professional Services (and for any Professional Services rescheduled by End User) for
which AppDynamics is unable to obtain a refund. During the Term (for Subscription
Licenses) or during the Maintenance and Support Term (for perpetual licenses), and in
each case for a period of twelve (12) months thereafter, without AppDynamics’ prior
written approval, End User will not solicit for employment or consultancy any
AppDynamics’ employees who participated in the performance of Professional Services.
2. FEES.
2.1 PRICING.
End User will be invoiced for those amounts and at those prices set forth in an Order
Form (an “Invoice”), provided, however, that, for Evaluation Use, End User shall not be
billed unless otherwise specified by AppDynamics in writing prior to End User downloading
or accessing (as applicable) the Software. Fees do not include any customization of the
Software (nor support for any such customizations, unless otherwise agreed in writing).
If End User’s usage of the Software is in excess of those amounts set forth in the Order
Form, End User will be billed for those overages at a pro-rated amount for the remainder
of the Term, based on AppDynamics’ then-current standard pricing. If AppDynamics believes
in good faith that End User’s usage of the Software exceeds that set forth on the
applicable Order Form, End User agrees to allow AppDynamics to audit End User’s use of
the Software (not more frequently than twice per calendar year), upon at least
twenty-four (24) hours’ notice, to determine the actual Software use, using a
commercially reasonable auditing procedure.
2.2 PAYMENTS.
End User shall pay undisputed Invoices within thirty (30) days of the invoice date (the
“Invoice Due Date”). If End User reasonably disputes any Invoice, (i) End User shall
provide AppDynamics with written notice of such dispute, including the grounds therefore
(a “Dispute Notice”), within thirty (30) days following receipt of such Invoice, (ii) End
User and AppDynamics shall, for a period of fifteen (15) days following AppDynamics’
receipt of such Dispute Notice, negotiate in good faith to resolve the dispute and (iii)
if such dispute remains unresolved at the end of such period, the parties shall retain
all of their respective rights under this Agreement (including, without limitation, any
action for non-payment of the fees set forth herein). All payment obligations are
non-cancelable and all amounts paid are non-refundable, except (a) for amounts paid in
error that are not actually due under this Agreement, and (b) as set forth in Sections
6.1 and 7.1. The fees paid by End User are exclusive of all taxes, levies, or duties
imposed by taxing authorities, if any, and End User shall be responsible for payment of
all such taxes, levies, or duties, excluding taxes based on AppDynamics’ income. End
User represents and warrants that the billing and contact information provided to
AppDynamics is complete and accurate, and AppDynamics shall have no responsibility for
any Invoices that are not received due to inaccurate or missing information provided by
End User. End User shall pay interest on all payments not received by the Invoice Due
Date at a rate of one percent (1%) per month or the maximum amount allowed by law,
whichever is lesser. Following written notice, AppDynamics shall be entitled to suspend
End User’s access to the Software if payments are not received within thirty (30) days of
the Invoice Due Date. Notwithstanding anything herein to the contrary, if End User makes
its payments pursuant to this Agreement to a Partner, then the payment terms agreed upon
by End User and such Partner shall govern to the extent anything in this Section 2
conflicts with such Partner payment terms.
3. CONFIDENTIALITY
3.1 SCOPE AND RESTRICTIONS.
"Confidential Information" means all information of a party ("Disclosing Party")
disclosed to the other party ("Receiving Party") that is designated in writing or
identified as confidential at the time of disclosure or should be reasonably known by the
Receiving Party to be confidential due to the nature of the information disclosed and the
circumstances surrounding the disclosure. The terms of this Agreement, any technical or
other documentation relating to the Software, logins, passwords and other access codes
and any and all information regarding AppDynamics’ business, products and services are
the Confidential Information of AppDynamics. The Receiving Party will: (i) not use the
Disclosing Party’s Confidential Information for any purpose outside of this Agreement;
(ii) not disclose such Confidential Information to any person or entity, other than its
affiliates, employees, consultants, agents and professional advisers who have a “need to
know” for the Receiving Party to exercise its rights or perform its obligations
hereunder, provided that such employees, consultants, and agents are bound by agreements
or, in the case of professional advisers, ethical duties respecting such Confidential
Information in accordance with the terms of this Section 3; and (iii) use reasonable
measures to protect the confidentiality of such Confidential Information. If the
Receiving Party is required by applicable law or court order to make any disclosure of
such Confidential Information, it will first give written notice of such requirement to
the Disclosing Party, and, to the extent within its control, permit the Disclosing Party
to intervene in any relevant proceedings to protect its interests in its Confidential
Information, and provide full cooperation to the Disclosing Party in seeking to obtain
such protection. Further, this Section 3 will not apply to information that the
Receiving Party can document: (i) was rightfully in its possession or known to it prior
to receipt; (ii) is or has become public knowledge or publicly available through no fault
of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third
party without breach of any confidentiality obligation; or (iv) is independently
developed by employees of the Receiving Party who had no access to such information.
3.2 EQUITABLE RELIEF.
The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s
Confidential Information could cause substantial harm to the Disclosing Party for which
damages alone might not be a sufficient remedy and, therefore, that upon any such
disclosure by the Receiving Party the Disclosing Party will be entitled to seek
appropriate equitable relief in addition to whatever other remedies it might have at law
or equity.
4. PROPRIETARY RIGHTS. AppDynamics and its suppliers own and shall retain all proprietary
rights, including all copyright, patent, trade secret, trademark and all other
intellectual property rights, in and to the Software and the results of any Professional
Services. End User acknowledges that the rights granted under this Agreement do not
provide End User with title to or ownership of the Software. Certain “free” or “open
source” based software (the “FOSS Software”) and third party software (the “Third Party
Software”) is shipped with the Software but is not considered part of the Software
hereunder. A list of the FOSS Software and Third Party Software is set forth on the
webpage located at http://www.appdynamics.com/open-source. With respect to Third Party
Software included with the Software, such Third Party Software suppliers are third party
beneficiaries of this Agreement. End User’s use of such FOSS Software is subject to the
terms of the licenses set forth on such webpage. The Software and Third Party Software
may only be used by End User as prescribed by the AppDynamics documentation located at
http://docs.appdynamics.com (as it may be updated from time to time, the “Documentation”).
5. TERM AND TERMINATION.
The initial term of this Agreement begins on the Effective Date and extends for the
period specified in the Order Form (or if the Software is provided for Evaluation Use,
for the Term specified in Section 1.3 hereof) (unless earlier terminated, the “Term”).
However, this Agreement may be renewed at any time for successive terms by mutual written
agreement of the parties (including by execution of an Order Form referencing this
Agreement) and each such renewal will be deemed part of the “Term” hereunder. With
respect to each Order Form, (i) each Subscription License contained therein shall
automatically renew for additional License Terms of the same duration and at a price
equal to the then-current list price less the discount contained in the renewing Order
Form; and (ii) for perpetual licenses contained therein, the Maintenance and Support Term
will automatically renew for additional periods of the same duration and at the same
Maintenance and Support Fees; in each case, excluding any items sold at no cost and/or
other discounts containing the words "one-time", and unless either party requests
termination by written notice at least thirty (30) days prior to the end of the
then-current term. Any such renewal terms shall be deemed part of the License Term or
Maintenance and Support Term, as applicable. If either party fails to comply with any
provision of this Agreement, and such breach has not been cured within thirty (30) days
after receipt of written notice thereof, the non-breaching party may terminate this
Agreement, except that AppDynamics may immediately terminate this Agreement and/or End
User’s license to the Software upon End User’s breach of Section 1.2. Upon expiration or
termination of this Agreement for any reason, (i) with respect to Subscription Licenses,
End User shall cease any further use of and destroy any copies of the Software and
Documentation within End User’s possession and control and (ii) each Receiving Party will
return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential
Information in the Receiving Party’s possession or control. All fees that have accrued
as of such expiration or termination, and Sections 1.2, 1.3, 1.4, 2, 3, 4, 5, 6.2 and 7
through 12, will survive any expiration or termination hereof.
6. WARRANTIES.
6.1 LIMITED WARRANTY.
AppDynamics warrants that (a) with respect to software-as-a-service Software licenses,
during the License Term, or (b) with respect to on-premise Software licenses, during the
first thirty (30) days following the date the Software is purchased, the Software will,
in all material respects, conform to the functionality described in the then-current
Documentation for the applicable Software version. AppDynamics’ sole and exclusive
obligation, and End User’s sole and exclusive remedy, for a breach of this warranty shall
be that AppDynamics shall be required to use commercially reasonable efforts to modify
the Software to conform in all material respects to the Documentation, and if AppDynamics
is unable to materially restore such functionality within thirty (30) days from the date
of written notice of such breach, End User shall be entitled to terminate this Agreement
upon written notice and receive a pro-rata refund of the Software license fees (or
Maintenance and Support Fees, for perpetual licenses) that have been paid in advance for
the remainder of the License Term for the applicable Software (beginning on the date of
termination).
6.2 WARRANTY DISCLAIMER.i
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL SOFTWARE, DOCUMENTATION, MAINTENANCE
AND SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND APPDYNAMICS AND ITS
SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT,
OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR
OPERATION OF THE SOFTWARE. APPDYNAMICS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE
ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH
THE SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT, OR PROFESSIONAL SERVICES.
7. INDEMNIFICATION.
7.1 BY APPDYNAMICS.
AppDynamics agrees to defend, at its expense, End User against any third party claim to
the extent such claim alleges that the Software infringes or misappropriates any patent,
copyright, trademark or trade secret of a third party, and AppDynamics shall pay all
costs and damages finally awarded against End User by a court of competent jurisdiction
as a result of any such claim. In the event that the use of the Software is, or in
AppDynamics’ sole opinion is likely to become, subject to such a claim, AppDynamics, at
its option and expense, may (a) replace the applicable Software with functionally
equivalent non-infringing technology, (b) obtain a license for End User’s continued use
of the applicable Software, or (c) terminate the license and provide a pro-rata refund of
the Software license fees (or Maintenance and Support Fees, for perpetual licenses) that
have been paid in advance for the remainder of the License Term for the applicable
Software (beginning on the date of termination). The foregoing indemnification obligation
of AppDynamics will not apply: (1) if the Software is modified by End User; (2) if the
Software is combined with other non-AppDynamics products, applications, or processes, but
solely to the extent the alleged infringement is caused by such combination; or (3) to
any unauthorized use of the Software. The foregoing shall be End User’s sole remedy with
respect to any claim of infringement of third party intellectual property rights.
7.2 BY END USER.
End User agrees to defend, at its expense, AppDynamics, its affiliates, suppliers and
resellers against any third party claim to the extent such claim arises from End User’s
breach of Section 1 or End User’s negligence or willful misconduct, and End User shall
pay all costs and damages finally awarded against AppDynamics by a court of competent
jurisdiction as a result of any such claim.
7.3 INDEMNIFICATION REQUIREMENTS.
In connection with any claim for indemnification under this Section 7, the indemnified
party must promptly provide the indemnifying party with notice of any claim that the
indemnified party believes is within the scope of the obligation to indemnify, provided,
however, that the failure to provide such notice shall not relieve the indemnifying party
of its obligations under this Section 7, except to the extent that such failure
materially prejudices the indemnifying party’s defense of such claim. The indemnified
party may, at its own expense, assist in the defense if it so chooses, but the
indemnifying party shall control the defense and all negotiations related to the
settlement of any such claim. Any such settlement intended to bind either party shall
not be final without the other party’s written consent, which consent shall not be
unreasonably withheld, conditioned or delayed; provided, however, that End User’s consent
shall not be required when AppDynamics is the indemnifying party if the settlement
involves only the payment of money by AppDynamics.
8. LIMITATION OF LIABILITY.
8.1 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON
USE) OR EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR
LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON
USE), EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY) OR EACH PARTY’S
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY’S LIABILITY FOR ANY
DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT
LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID
(PLUS FEES PAYABLE) TO APPDYNAMICS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING
THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. FORCE MAJEURE.
Except for payment obligations, neither party hereto will be liable for defaults or
delays due to acts of God, or the public enemy, acts or demands of any government or
governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes
beyond its control and not due to its fault or negligence.
10. DATA COLLECTION.
AppDynamics’ application server and machine software agents (the “Agents”) collect
metrics that relate to the performance, health and resource of an application, its
components (transactions, code libraries) and related infrastructure (nodes, tiers) that
service those components. In addition, AppDynamics may collect metrics on End Users’
activities, such as web pages visited, length of visit, and which features of the
Software an End User uses. End User will not configure the Software to collect any
personally-identifiable information or payment information (“Personal Data”) without
AppDynamics’ prior written approval, and End User will indemnify AppDynamics for
reasonable costs and other amounts that AppDynamics may incur relating to any breach of
the foregoing. For more information on AppDynamics’ policies and technical information
regarding Personal Data, please visit:
https://legal.appdynamics.com/AppDynamics_SaaS_Data_Privacy_Information.pdf.
11. US GOVERNMENT MATTERS.
As defined in FAR section 2.101, the Software and Documentation are “commercial items”
and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial
computer software” and “commercial computer software documentation.” Consistent with
DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction,
release, performance, display, or disclosure of such commercial software or commercial
software documentation by the U.S. Government will be governed solely by the terms of
this Agreement and will be prohibited except to the extent expressly permitted by the
terms of this Agreement.
12. MISCELLANEOUS.
This Agreement shall be governed by and construed under the laws of the State of
California, U.S.A. The parties consent to the exclusive jurisdiction and venue of the
courts located in and serving San Francisco, California. Failure by either Party to
exercise any of its rights under, or to enforce any provision of, this Agreement will not
be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If
any provision of this Agreement is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as
possible the same economic effect of the original provision and the remainder of this
Agreement will remain in full force and effect. This Agreement and its exhibits, together
with the Order Form(s) and any statements of work incorporating this Agreement, if
applicable, represent the entire agreement between the parties and supersede any previous
or contemporaneous oral or written agreements or communications regarding the subject
matter of this Agreement. The person signing or otherwise accepting this Agreement for
End User represents that s/he is duly authorized by all necessary and appropriate
corporate action to enter into this Agreement on behalf of End User. Any modification to
this Agreement must be in writing and signed by a duly authorized agent of both parties.
The Uniform Computer Information Transactions Act (UCITA) does not apply to this
Agreement. This Agreement shall control over additional or different terms of any
purchase order, confirmation, invoice or similar document, even if accepted in writing by
both parties, and waivers and amendments to this Agreement shall be effective only if
made by non-pre-printed agreements clearly understood by both parties to be an amendment
or waiver to this Agreement. For purposes of this Agreement, “including” means “including
without limitation.” The rights and remedies of the parties hereunder will be deemed
cumulative and not exclusive of any other right or remedy conferred by this Agreement or
by law or equity. No joint venture, partnership, employment, or agency relationship
exists between the parties as a result of this Agreement or use of the Software.
AppDynamics reserves the right to perform its obligations from locations and/or through
use of affiliates and subcontractors, worldwide, provided that AppDynamics will be
responsible for such parties. This Agreement may not be assigned by either party without
the prior written approval of the other party and any purported assignment in violation
of this section shall be void; provided, however, that either party may assign this
Agreement in connection with the transfer, directly or indirectly, of more than fifty
percent (50%) of such party’s outstanding voting securities or of all or substantially
all of the assets or business of such party (a “Change in Control”); provided, further,
that AppDynamics may assign this Agreement to any of its affiliates. Upon any assignment
of this Agreement by End User in connection with a Change in Control, any licenses that
contain an “unlimited” feature will, with respect to End User or the successor entity, as
applicable, be capped at the number of authorized Software units in use immediately prior
to such Change in Control. End User agrees that AppDynamics may refer to End User by
trade name and logo, and may briefly describe End User’s business, in AppDynamics’
marketing materials and website. AppDynamics may give notice to End User by electronic
mail to End User’s email address on record in End User’s account information, or by
written communication sent by first class mail or pre-paid post to End User’s address on
record in End User’s account information. End User may give notice to AppDynamics at any
time by any letter delivered by nationally recognized overnight delivery service or first
class postage prepaid mail to AppDynamics at the following address or such other address
as may be notified in writing to End User from time to time: AppDynamics, Inc., 303
Second Street, North Tower, 8th Floor, San Francisco, CA 94107, Attn: Legal Department.
Notice under this Agreement shall be deemed given when received, if personally delivered;
when receipt is electronically confirmed, if transmitted by email; the day after it is
sent, if sent for next day delivery by recognized overnight delivery service; and upon
receipt, if sent by certified or registered mail, return receipt requested.
EXHIBIT A
ENTERPRISE SUPPORT
GENERAL REQUIREMENTS.
AppDynamics will provide access to a ticketing system and email address
(help@appdynamics.com), which will be available twenty-four (24) hours per day, seven (7)
days per week. The email account will be maintained by qualified support specialists, who
shall use commercially reasonable efforts to answer questions and resolve problems
regarding the Software.
HOURS OF OPERATION.
Support is available (24) hours per day, seven (7) days per week.
ERROR CLASSIFICATION.
Any reported errors are classified in the following manner, in each case when caused by
the Software:
Error Classification Criteria
==================== ========
Urgent End User production application is down or there is a
major malfunction, resulting in a business revenue loss and
impacting the End User application functionality for a
majority of users.
High Critical loss of End User application functionality or
performance, impacting the application functionality for a
high number of users.
Normal Moderate loss of End User application functionality or
performance, impacting multiple users.
Low Minor loss of End User application functionality or
product feature in question.
ERROR DEFINITION.
An “error” means a reproducible malfunction in the Software that is reported by End User
through AppDynamics’ ticketing system that prevents the Software from performing in
accordance with the operating specifications described in the then-current Documentation.
AUTHORIZED SUPPORT CONTACTS.
Maintenance and Support will be provided solely to End User’s authorized support
contacts. The Order Form may indicate a maximum number of authorized support contacts for
End User’s service level. End User will be asked to designate its authorized support
contacts, including its primary email address.
END USER’S OBLIGATION TO ASSIST.
If End User reports a purported error in the Software to AppDynamics, AppDynamics’
ticketing system will request the following minimum information:
A general description of the operating environment
A list of all hardware components, operating systems and networks
A reproducible test case
Any log files, trace and systems files
End User’s failure to provide this information may prevent AppDynamics from or
significantly delay AppDynamics’ ability to identify and fix the reported error, and
AppDynamics’ time to respond to any error will begin when AppDynamics has received all
requested information from the End User and is able to reproduce the error.
ERROR RESOLUTION.
If AppDynamics determines there is an error in the Software, AppDynamics may, at its sole
option, repair that error in the version of the Software that End User is currently using
or instruct End User to install a newer version of the Software with that error repaired.
AppDynamics reserves the right to provide End User with a workaround in lieu of fixing an
error.
SOFTWARE UPDATES AND UPGRADES. End User must be current on fees in order to receive
access to Maintenance.
RESPONSE TIME. AppDynamics shall use commercially reasonable efforts to respond to error
tickets in accordance with the tables set forth below. AppDynamics will use reasonable
means to repair the error and keep End User informed of progress. AppDynamics makes no
representations as to when a full resolution of the error may be made.
Error Initial Response Manager Escalation VP Escalation Email Status Updates
===== ================ ================== ============= ====================
Urgent 4 Hours 1 Business Day 1 Week Daily
High 12 Hours 1 Week 2 Weeks Weekly
Normal 1 Business Day Quarterly Review None None
Low 2 Business Days Semi-Annual Review None None
END OF LIFE POLICY: Support is provided for the Software version 3.5 and later. The
AppDyanamics’ End of Life Policy is as follows:
• “Mainstream Support”: support calls are accepted and the version is maintained with bug
fix releases and patches.
• “Extended Support”: support calls are accepted however the version is not maintained.
• “Out of Support”: no support calls are accepted and the version is not maintained.
AppDynamics provides Extended Support for a period of 24 months after a Software
version’s release. AppDynamics provides Mainstream Support for a period of 12 months
after a version’s release. For example, if version 4.0 was released in December of 2014,
Mainstream Support would be provided until December of 2015. Extended Support would be
provided until December of 2016. The Software version 4.0 would be Out of Support
beginning in January of 2017. For clarity, Support is version-based; if End User upgraded
to version 5.0 in January of 2017 when version 5.0 was released, Mainstream Support would
be provided for version 5.0 beginning in January of 2017. AppDynamics does not provide
Maintenance or Support for any customized software (or components thereof).
For third party software or technology used by End User with the Software but not
included with the Software (a “Platform”, such as Java Virtual Machines), AppDynamics
will follow the EOL support timeline announced by the third party vendor of such
Platform. AppDynamics will drop support for an EOL’d Platform version when the Platform
vendor stops supporting that Platform version
EXHIBIT B
AVAILABILITY AND SECURITY
The terms set forth in this Exhibit B apply only if End User has purchased access to the
online software-as-a-service (“SaaS”) version of the Software, as indicated on the Order
Form.
AVAILABILITY.
AppDynamics will use commercially reasonable efforts to (a) provide bandwidth sufficient
for End User's use of the Software provided hereunder and in an applicable Order Form and
(b) operate and manage the Software with a ninety-nine and one-half percent (99.5%)
uptime goal (the “Availability SLA”), excluding situations identified as “Excluded”
below. For purposes of the Availability SLA, the AppDynamics network extends to,
includes and terminates at the data center located router that provides the outside
interface of each of AppDynamics’ WAN connections to its backbone providers (the
“AppDynamics Network”).
Excluded" means any outage that results from any of the following:
a. Any Maintenance performed by AppDynamics during AppDynamics’ standard Maintenance
windows. AppDynamics will notify End User within forty-eight (48) hours of any standard
Maintenance and within twenty-four (24) hours for other non-standard emergency
Maintenance (collectively referred to herein as “Scheduled Maintenance”).
b. End User's information content or application programming, or the acts or omissions of
End User or its agents, including, without limitation, the following:
1. End User’s use of any programs not supplied by AppDynamics;
2. End User’s failure to provide AppDynamics with reasonable advance prior notice of
any pending unusual large deployments of new nodes (i.e., adding over ten (10) percent
total nodes in less than twenty-four (24) hours);
3. End User’s implementation of any significant configuration changes, including
changes that lead to a greater than thirty percent (30%) change in a one week period or
greater than fifty percent (50%) change in a one month period in the number of key
objects in the system including but not limited to metrics, snapshots, nodes, events and
business transactions;
4. Any misconfiguration by End User (as determined in AppDynamics’ sole discretion),
including configuration errors and unintended usage of the Software; and
5. End User’s failure to upgrade the AppDynamics Agents to keep the Agent versions
within six (6) months of the controller version.
c. Force majeure or other circumstances beyond AppDynamics’ reasonable control that could
not be avoided by its exercise of due care.
d. Failures of the Internet backbone itself and the network by which End User connects to
the Internet backbone or any other network unavailability outside of the AppDynamics
Network.
e. Any window of time when End User agrees that Software availability/unavailability will
not be monitored or counted.
f. Any problems resulting from End User combining or merging the Software with any
hardware or software not supplied by AppDynamics or not identified by AppDynamics in the
Documentation as being compatible with the Software.
g. End User’s or any third party’s use of the Software in an unauthorized or unlawful
manner.
Remedies for Excessive Downtime:
In the event the availability of the Software falls below the Availability SLA in a given
calendar quarter, AppDynamics will pay End User a service credit (“Service Credit”) equal
to the percentage of the fees set forth in the table below corresponding to the actual
Availability of the Software during the applicable calendar quarter (on pro-rated basis
for annual fees). Such Service Credit will be issued as a credit against any fees owed
by End User for the next calendar quarter of the Term, or, if End User does not owe any
additional fees, then AppDynamics will pay End User the amount of the applicable Service
Credit within thirty (30) days after the end of the calendar quarter in which such credit
accrued. To receive Service Credits, End User must submit a written request to
AppDynamics (to customersuccess@appdynamics.com with a copy to legal@appdynamics.com)
within 15 days after the end of the quarter in which the Software was unavailable, or End
User’s right to receive Service Credits with respect to such unavailability will be
waived. The remedies stated in this section are End User’s sole and exclusive remedies
and AppDynamics’ sole and exclusive obligations for service interruption or
unavailability.
System availability is measured by the following formula: x = (n - y) *100 / n
(1) “x” is the uptime percentage; “n” is the total number of hours in the given calendar
quarter minus scheduled downtime; and “y” is the total number of downtime hours in the
given calendar quarter.
(2) Specifically excluded from "n and "y" in this calculation are the Excluded
situations described above and scheduled upgrade and maintenance windows.
Software Availability Percentage of Quarterly Software Fees Credited
> 99.5% 0%
95.0% - < 99.5% 5% (max of $280)
90.0% - < 95.0% 10% (max of $560)
80.0% - < 90.0% 20% (max of $840)
70.0% - < 80.0% 30% (max of $1120)
60.0% - < 70.0% 40% (max of $1400)
< 50% 50% (max of $2800)
SECURITY INFORMATION.
End User Account Login: For Software user interface access, AppDynamics uses TLS 1.0 with
AES 256 bit encryption, terminated at the server to ensure end-to-end security over the
wire. AppDynamics will also restrict user interface access to End User corporate networks
for additional security, except as otherwise requested by End User.
Hosting: The platform (servers, infrastructure and storage) for the Software is and will
remain hosted in one of the largest Tier III data centers in North America, specifically
designed and constructed to deliver world-class physical security, power availability,
infrastructure flexibility and growth capacity. AppDynamics’ data center provider is and
will remain SSAE 16 compliant, meaning it has been fully independently audited to verify
the validity and functionality of its control activities and processes.
Every server for the Software is and will remain operated in a fully redundant fail-over
pair to ensure high availability. Data is and will remain backed up nightly, stored
redundantly and will be restored rapidly in case of failure. AppDynamics also provides an
off-site backup service, which is available at an additional cost.
Security updates and patches are actively evaluated by engineers and will be deployed
based upon the security risks and stability benefits they offer to the Software and End
Users.
Data Access: Access to the Software platform infrastructure and data is and will be
secured by multiple authentication methods including RSA and DSA key pairs, passwords,
and network access control lists. Infrastructure and data access is and will remain
restricted to AppDynamics; employees and contractors subject to confidentiality
agreements.
For more information on use of data, please see AppDynamics’ Privacy Policy located at
http://www.appdynamics.com/privacy-policy. System and network activity for the Software
are and will remain actively monitored by a team of engineers 24/7. Failed authentication
attempts are audited and engineers will be paged immediately so that any possible
intrusion or threat can be investigated promptly. Standard firewall policies are and will
remain deployed to block all access except to ports required for Software and Agent
communication.
Data Communication: Agents will typically push data using one-way HTTP or HTTPS
connections to a single host (known as a controller), which has been allocated to one or
more End User accounts. AppDynamics also offers dedicated controllers for End Users that
require their data to be isolated (this may require payment of an additional fee).
For added security, Agents can be configured to send data using encrypted transmission by
simply selecting HTTPS port 443 and setting "controller-ssl-enabled" to true in Agent
configuration. Agents also have built in support for outbound HTTP proxies for End Users
using these security mechanisms.
AppDynamics uses random staggering on Agent data communication to the Software platform
so traffic is spread evenly to minimize bursts and spikes of network traffic from End
User’s data center to the Software platform.
AppDynamics Proprietary and Confidential * Revision 11.18.2014
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