Customer License and Subscription Agreement

This Customer License and Subscription Agreement (“Agreement”) is entered into and effective as of the earlier of the date (i) the entity listed on an Order starts to use the Products, (ii) the last date of the signature of the Order between the entity and MinIO or a MinIO authorized-reseller or distributor; or (iii) the date the entity accesses or uses the Products (hereinafter the “entity” shall be referred to as “Customer”) (the “Effective Date”) and MinIO, Inc., a Delaware corporation with its principal place of business at 275 Shoreline Drive, Suite 100, Redwood Shores, CA 94065 (“MinIO”). Each of MinIO and Customer are referred to herein individually as a “Party” and collectively as the “Parties.”

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THIS AGREEMENT APPLIES IN CONNECTION WITH CUSTOMER’S PURCHASE OR LICENSE (AS APPLICABLE) OF PRODUCTS AND SERVICES DIRECTLY FROM MINIO OR INDIRECTLY FROM A MINIO PARTNER, DISTRIBUTOR, OR RESELLER (INCLUDING ANY CLOUD MARKETPLACE MINIO PARTICIPATES ON). THIS AGREEMENT APPLIES UNLESS CUSTOMER HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH MINIO GOVERNING SUCH PURCHASE OR LICENSE. BY PURCHASING OR LICENSING SUCH PRODUCTS OR SERVICES EITHER (I) VIA AN ORDER DIRECTLY WITH MINIO OR INDIRECTLY WITH A MINIO PARTNER, RESELLER, OR CLOUD MARKETPLACE, (II) CLICKING A BOX INDICATING ACCEPTANCE, OR (III) ACCEPTING DELIVERY AND USING PRODUCTS OR SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE AGREEMENT. THIS AGREEMENT APPLIES TO ALL CURRENT AND FUTURE USE AND ACCESS OF MINIO PRODUCTS AND SERVICES BY CUSTOMER UNLESS EXPRESSLY AGREED OTHERWISE BY CUSTOMER AND MINIO IN WRITING. FOR CLARITY, THIS AGREEMENT APPLIES TO ALL AISTOR ENTERPRISE LITE AND AISTOR ENTERPRISE PURCHASES, BUT DOES NOT APPLY TO AISTOR FREE TIER. AISTOR FREE TIER IS GOVERNED BY THE MINIO AISTOR FREE TIER LICENSE AGREEMENT LOCATED AT https://www.min.io/legal/aistor-free-agreement.

This Agreement may be periodically updated from time to time, and the current version will be posted at https://min.io/legal. Customer’s continued use of the Products after a revised Agreement has been posted constitutes Customer’s acceptance of its terms.

DEFINITIONS
1. “Affiliate” means any entity controlled, directly or indirectly, by, under common control with, or controlling, a party, and specifically includes without limitation, subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control. For the purposes of this definition, “control” means the power to direct, or cause the direction of, the management and policies of such entity whether by contract, law, or ownership of the majority of the voting shares or assets of another entity.
2. “Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.
3. “Deployment Services” means the deployment and related services for the Products provided by MinIO to Customer as described in the Order.
4. “Documentation” means user manuals, reference manuals, installation guides, and other technical material provided with the Products, as updated from time to time by MinIO.
5. “Fees” means any fees paid or to be paid for Products under an Order.
6. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, in any state, country, or jurisdiction.
7. “MinIO Materials” means all MinIO proprietary materials, including but not limited to Intellectual Property Rights for all Products and Documentation, MinIO’s processes and methods, and/or materials distributed by MinIO during any presentations, proof of concepts, or demonstrations of the Products.
8. “Order” means a MinIO-approved written order form/sales proposal, purchase order, or similar ordering document for Products submitted by Customer or Partner, as applicable.
9. “Partner” means the MinIO-approved partner authorized by MinIO to resell or distribute the Products or otherwise provide Products to Customer.
10. “Personal Data” has the same meaning defined in the Data Processing Agreement under Section 7.1.
11. “Products” means, collectively, the MinIO products, Software, Deployment Services, and Support Services, including all Updates and Upgrades.
12. “Software” means any MinIO’s proprietary object storage software application in object code form, MinIO software, utility, tool, or other computer or program code provided directly or indirectly to Customer in object (binary) code only, as well as any copies (whether complete or partial) made by or on Customer’s behalf. The term “Software” also includes any Updates and Upgrades (as defined below). For clarity, “Software” expressly excludes any source code, which is not licensed under this Agreement.
13. “Subscription Term” means the Initial Subscription Term and any and all Renewal Subscription Terms (as defined in Section 8.2), collectively.
14. “Support Services” means the support services provided by MinIO with respect to each applicable MinIO Product described at https://min.io/legal.
15. “Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any MinIO Products, other than taxes based on the net income of MinIO.
16. “Unit” means the amount of data under management by the Software.
17. “Updates and Upgrades” means all enhancements, modifications, and corrections made to the Products by MinIO, including subsequently released versions of the Products or other new features, functionality or enhancements to the Products made available directly or indirectly to Customer. For clarity, Updates and Upgrades do not include any additional features or enhancements made available to customers or end users by MinIO licenses separately or for an additional fee.
18. “Usage Limit” means the maximum number of Units that Customer has purchased, as identified in an Order.
ORDERS AND PAYMENT
1. Governing Terms. Customer and its Affiliates may purchase Products through an Order. All Orders and Customer’s access and use of the Products and Documentation will be governed by the terms and conditions in this Agreement. Where a Customer Affiliate is named in an Order, that Order will create a separate agreement between that Affiliate and MinIO, incorporating the terms of this Agreement with the Affiliate deemed "Customer." For clarity, MinIO will not be obligated to provide any Products to Customer or its Affiliate(s) until MinIO receives a valid Order for such Products. This Agreement governs Customer’s license of Products and services for Customer’s internal use, and not for resale or distribution.
2. Non-Reliance. Customer and its Affiliates agree that its purchase of any Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by MinIO with respect to any future functionality or features.
3. Fees and Payment.
  1. Partner Purchases. This Section 2.3.1 applies only if Customer purchases Products via a MinIO authorized Partner. In such cases, Fees and payment terms shall be agreed and documented between Customer and/or its Affiliate(s) and the Partner, unless otherwise agreed to in writing by the Parties. If Customer purchases MinIO Products through a marketplace, Customer agree that the information relating to Customer’s use of MinIO Products may be shared with MinIO Affiliates or the applicable Partner for billing and metering purposes.
  2. Direct Purchases. This Section 2.3.2 only applies for purchases of Products ordered directly from MinIO.
    1. Orders. Customer will submit all Orders to MinIO electronically. Each Order will be based on, and refer to, a valid and current price quotation (where applicable) and will include relevant Product information, appropriate legal entities, “ship to” and “bill to” locations (where applicable) and Subscription Term dates (where applicable). All Orders are subject to acceptance by MinIO.
    2. Payment and Taxes. Unless otherwise agreed to in an Order, Customer agrees to pay Fees for the Products ordered within thirty (30) days after the date of MinIO’s invoice date. Credit is subject to MinIO’s approval, and any terms related thereto may change at any time and in MinIO’s sole discretion. All Fees, expenses, and other amounts paid under the Agreement are non-refundable and payment obligations are non-cancelable, except as provided in this Agreement, or were prohibited by law. If Customer is purchasing via a credit card, then Customer (i) authorizes MinIO to charge Customer’s required card for all amounts due; and (ii) agrees to provide updated credit card information to MinIO as needed to pay the Fees or others owed. Late payments are subject to an interest rate of one and a half percent (1.5%) per month, or the maximum permitted by applicable law, whichever is greater. Fees do not include reasonable Taxes or service provider fess (such as payment processor or vendor management), and Customer agrees to pay or reimburse MinIO such amounts. Customer must pay the Fees and expense without withholding or deduction. If Customer is required to withhold or deduct Taxes from the Fees or expenses, then Customer agrees to increase the amount payable to MinIO by the amount of such Taxes so that MinIO receives the full amount of Fees and expenses. If Customer is tax-exempt, then Customer will provide MinIO with tax exemption certificates or other documentation acceptable to the taxing authorities not later than thirty (30) days from the date Customer places an Order with MinIO. If Customer does not provide such documentation to MinIO, MinIO reserves the right to include such taxes in the invoice. In addition to the stated prices, Customer is responsible for all applicable duties, license fees and Taxes for Products shipped across international borders in accordance with the applicable trade term specified or as otherwise may apply. For Customers outside of the United States, (a) the Fees will be grossed up to include any local withholding tax due which, if due, will be payable by the Customer to the relevant tax authorities; (b) any Value Added Taxes (VAT) due is the responsibility of Customer under any local reverse charge mechanism; and (c) Customer must provide evidence of its VAT registration status to support the application of the reverse charge mechanism.
    3. Remedies for Non-Payment. Customer’s payment of an amount less than the invoice amount will not be deemed as acceptance of payment in full, nor will any endorsement or statement on any check or letter accompanying any payment or check be deemed an accord and satisfaction. MinIO may accept such payment without prejudice to MinIO’s right to recover the balance of any amount due or pursue any other remedy provided for in this Agreement, or by law or in equity. MinIO has the right to apply any payment received from Customer to any account of Customer which is due and/or delinquent. If Customer fails to make timely payment, in addition to all other available remedies, MinIO will have the right to decline to make further deliveries of Products or provide further services to Customer.
    4. Fees. Fees are determined by the Usage Limit associated with the applicable MinIO Products as described in an Order. Customer agrees to order and pay for the appropriate type and quantity of MinIO Products based on the Usage Limit Customer uses or deploys.
4. Excess. If during the term of the Agreement, Customer’s Usage Limit exceeds what Customer ordered and paid for, Customer shall promptly report to MinIO or Customer’s chosen Partner the amount of additional Usage Limit use or deployed and the date(s) on which they were used or deployed in excess. MinIO or Partner will invoice Customer and Customer agrees to pay for the additional Usage Limit Fees.
5. Reporting; True Up. Except where the Product is used in an “air-gapped” environment, Customer will not interfere with any feature or function that reports usage of the Product. If MinIO is unable to remotely monitor usage of the Product, then Customer will submit a report (the “Report”) specifying Customer’s actual usage of the Product at the frequency specified in the Order, including any usage in excess of the Usage Limit. Reports will include all documentation necessary for MinIO to verify the amounts in the Report and Customer will promptly provide any documentation reasonably requested by MinIO.
LICENSE GRANT AND RESTRICTIONS
1. License Grant. Subject to the terms and conditions of this Agreement, MinIO grants Customer and its Affiliates a limited, worldwide, non-exclusive, non-transferable, non-assignable (except as otherwise permitted in this Agreement), non-sublicensable, revocable (as described herein) right (i) to download, install, and use the Products, and permit its Authorized User to access and use the Products, solely in connection with Customer’s or its Affiliates, as applicable, internal business operations during the Subscription Term for the Usage Limit for the purchased Products set forth in the Order; and (ii) during the Term of the applicable Order solely to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with its internal use of the Products.
2. Restrictions. Except as explicitly provided in this Agreement or as permitted by applicable law, Customer shall not and shall not allow or permit any third party to including its Affiliates to: (i) copy, modify, or create derivative works of the Products or Documentation; (ii) rent, lease, lend, sell, sublicense, assign, distribute, or otherwise make the Products available to any third party; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Products, in whole or in part; (iv) remove or alter any proprietary notices, trademarks, copyrights, legends, symbols, or logos from the Products or Documentation; (v) use the Products in a manner that violates or is prohibited by applicable laws or regulations, including but not limited to uploading to the Products or using the Products to send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (vi) access or use the Products to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; (vii) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (viii) attempt to gain unauthorized access to the Products or its related systems or networks; (ix) remove or otherwise interfere with any part of the Products designed to monitor Customer’s compliance with this Agreement and the Usage Limits; (x) perform penetration or load testing on the Products without the prior written consent of MinIO and agreeing to certain conditions and requirements for such penetration or load testing; (xi) without the express prior written consent of MinIO, conduct any public benchmarking or comparative study or analysis involving the Products; (xii) access or use the Products from a prohibited location in violation of U.S. trade and economic sanctions; or (xiii) otherwise use the Products except as expressly permitted hereunder. Without limiting the foregoing, Customer will not use the Products in a way that (a) imposes or could impose a requirement or condition that any Products or part thereof (i) be disclosed or distributed in source code form, (ii) be licensed for the purpose of making modifications or derivative works, or (iii) be redistributable at no charge, or (b) otherwise imposes or could impose any other material limitation, restriction, or condition on the right or ability of MinIO to use or distribute the Products. Excluding the Customer Content (as defined below), Customer agrees not to give MinIO access to any other content, materials, data or information of Customer.
3. Customer Account. Customer may be required to create an account to access MinIO Subscription Network (“SUBNET”) in order for MinIO to provide Support Services or as otherwise necessary for MinIO to meet its obligations herein. Customer shall provide accurate information when creating a SUBNET account. Customer shall not access or create multiple SUBNET accounts in a manner that is (i) intended to avoid, or has the effect of avoiding, payment of Fees; (ii) circumventing thresholds or Usage Limit limitations associated with Customer’s account; or (iii) intended to violate the Agreement. Customer is solely responsible for all activities in connection with Customer’s account and will notify MinIO promptly if Customer if it becomes aware of any unauthorized use.
4. Customer’s Access, Use, Responsibilities, and Compliance. Customer agrees to only access and use the Products in accordance with this Agreement, applicable laws, and the applicable Documentation, including any relevant Products usage guidelines. Customer and MinIO agree to work together in good faith to promptly resolve any unauthorized access or use of the Products by Customer. Customer acknowledges and agrees that: (i) MinIO is not responsible for ensuring Customer’s compliance with any laws or regulations applicable to Customer’s use of the Products; (ii) Customer is solely responsible for obtaining any necessary consents, authorizations, or approvals required for its use of the Products, including but not limited to those related to the processing of Personal Data; (iii) MinIO shall not be liable for any fines, penalties, or damages arising from or relating to Customer’s failure to comply with applicable laws or regulations; (iv) Customer is responsible for all activity of Authorized Users and for Authorized Users’ compliance with this Agreement; (v) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Personal Data; (vi) prevent unauthorized access to, or use of, the Products, and notify MinIO promptly of any such unauthorized access or use; (vii) it and its Authorized User’s shall comply with all applicable laws and/or regulations in using the Products; and (viii) Customer is solely responsible for its connection to the Internet or any equipment or third-party licenses and hardware necessary for Customer to use the Products.
PROPRIETARY RIGHTS
1. MinIO Ownership. The Products and Documentation are licensed, not sold, to Customer. MinIO and its licensors own and retain all rights, title, and interest in and to the MinIO Materials, Products, and Documentation, including but not limited to all Intellectual Property Rights inherent therein. No rights or licenses are granted to Customer except as expressly set forth in this Agreement. Any rights not explicitly granted to Customer herein are reserved by MinIO.
2. Protection of Intellectual Property. Customer acknowledges that the Products and Documentation contain proprietary and Confidential Information of MinIO, including but not limited to trade secrets, algorithms, and source code. Customer agrees to take all reasonable measures to protect the confidentiality of the Products and Documentation and to prevent any unauthorized access, use, or disclosure.
3. Customer Ownership. All rights and title in and to the Customer Content (as defined below), including all Intellectual Property Rights inherent therein, belong exclusively to Customer. No rights are granted to MinIO other than as expressly set forth in this Agreement.
4. Feedback and Usage Data. If Customer provides any feedback, advice, suggestions, guidance, recommendations or other information relating to MinIO’s business, technology, services, the Products, or Documentation (collectively, “Feedback”), MinIO shall own all rights, title, and interest in and to such Feedback. Where MinIO collects data that is derived from Customer’s usage, configuration, deployment access, performance and operation of the Software and SUBNET (“Usage Data”), MinIO shall own all rights, title, and interest in and to such Usage Data. Customer hereby assigns all rights in such Feedback and Usage Data to MinIO. For clarity, without limiting MinIO’s confidentiality and/or security obligations set forth in this Agreement, MinIO reserves the right to use or act upon any Feedback or Usage Data without restriction or obligation to Customer. MinIO acknowledges that all Feedback and Usage Data is provided “as-is” without any warranty.
5. Enforcement. Customer acknowledges that any unauthorized use, reproduction, or distribution of the Products or Documentation would cause irreparable harm to MinIO for which monetary damages may be inadequate. Accordingly, in addition to any other remedies available at law or in equity, MinIO shall be entitled to seek injunctive relief to prevent or mitigate any such unauthorized use, reproduction, or distribution.
6. Support Services. Subject to Customer’s payment of all applicable Fees, MinIO will use commercially reasonable efforts, during the Term of the applicable Order, to provide the Support Services. If pursuant to the Support Services, Customer provides MinIO any Software-related logs (“Customer Content”), then Customer hereby provides MinIO a limited, irrevocable, fully paid-up license to use such Customer Content solely as necessary to provide support for, maintain, and improve the Software.
MINIO RIGHTS
1. Audit Rights. MinIO reserves the right to audit Customer’s use of the Products and Documentation to ensure compliance with this Agreement. Such audits may be conducted during normal business hours upon reasonable notice. If an audit reveals any unauthorized use of the Products or Documentation, Customer shall promptly pay MinIO any applicable fees and reimburse MinIO for the costs of the audit.
2. Suspension. MinIO reserves the right to suspend Customer’s access to the Products in the event (i) Customer’s use of the Products represents an imminent threat to MinIO’s network, (ii) Customer breaches Section 3.2 (Restrictions), Section 2.5 (Reporting; True Up) or any other provision of this Agreement that would cause MinIO material risk; (iii) Customer’s account is ten (10) days or more overdue; or (iv) if directed by a court or competent authority. In such case and where practicable, MinIO will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, MinIO will promptly restore Customer’s access to the Products.
CONFIDENTIAL INFORMATION
1. Definition. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including, to the extent permitted by applicable law, the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Products, the MinIO Materials, MinIO’s security information and reports, and each party’s respective business and marketing plans, technology, and technical information, product designs, and business processes.
2. Exceptions. The obligations in this Section 6 shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
3. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Either party may disclose Confidential Information on a need-to-know basis to (i) its personnel, auditors and Affiliates who are subject to the same confidentiality obligations, and (ii) its attorneys and accountants who are either subject to professional obligations of confidentiality or have agreed to be bound by confidentiality obligations at least as protective as those set out herein.
4. Protection. The Receiving Party will use at least the same level of care to prevent unauthorized use of the Disclosing Party’s Confidential Information as it uses for its own Confidential Information, but in no event less than a reasonable standard of care.
5. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) or the Disclosing Party reasonably believes that the Receiving Party may disclose or use any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 6.5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.
DATA PROTECTION, PRIVACY, AND SECURITY
1. Data Privacy. In the event MinIO has access, use, or processes Personal Data, the Parties shall comply with the privacy and security terms of the Data Processing Agreement located at https://www.min.io/legal/data-processing-agreement (“DPA”) which is incorporated into this Agreement by reference. MinIO will either process or control, as applicable, any Personal Data in accordance with its Privacy Policy located at https://www.min.io/legal/privacy-policy or the DPA. Customer consents to such processing as necessary for the performance of this Agreement and for MinIO to provide the Products to Customer.
2. Security. MinIO is certified under ISO 27001 and System and Organization Controls (SOC) 2, Type II standards (“Certifications”) and is audited annually by an independent third party to ensure its ongoing compliance with these certifications. Upon written request and subject to MinIO’s sole discretion, MinIO agrees to provide Customer with a copy of its most recent ISO 27001 certificate and/or SOC 2, Type II report. MinIO will take appropriate steps to ensure compliance with the Certifications by its employees, contractors and subcontractors/sub-processors to the extent applicable to their scope of performance.
TERM AND TERMINATION
1. Agreement Term. This Agreement is effective from the Effective Date throughout the Subscription Term.
2. Order Term. For Products purchased via an Order, the initial term of Customer’s subscription to the purchased Products will begin on the start date set forth in an Order and will continue for the period of time stated in the Order (“Initial Subscription Term”) and may be renewed for successive periods (“Renewal Subscription Term”).
3. Termination for Material Breach. Either Party may terminate this Agreement and any Order: (i) if the other Party is in material breach of any of the terms and conditions of this Agreement and does not cure such material breach within thirty (30) days of receiving written notice; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. MinIO may, without limitation to any of its other rights or remedies, terminate this Agreement or any Order upon ten (10) days’ written notice if Customer fails to timely pay any Fees specified in an Order, or any other amounts owing under this Agreement.
4. Effect of Termination. If this Agreement expires or is terminated for any reason, (i) Customer will pay to MinIO any Fees or other amounts that have accrued prior to the effective date of the termination, (ii) any and all liabilities accrued prior to the effective date of the termination will survive, and (iii) Customer will provide MinIO with a written certification signed by an authorized representative certifying that Customer has destroyed all copies of the Products and Documentation and that all use of the Products and Documentation by Customer has been discontinued. If MinIO terminates for Customer’s breach or non-payment, Customer will also pay all Fees for the remainder of the current term, whether or not such Fees have accrued. Customer acknowledges and agrees that after an Order Subscription Term, Customer will not have rights to use the Products or to manage or access data and content through the Products. Upon termination of this Agreement, Customer must cease all use of the Products and all rights to use any Products and related Documentation licensed under this Agreement shall automatically cease. The following provisions shall survive the termination of this Agreement and all Orders: Section 2 (Orders and Payment), Section 3 (License Grant and Restrictions) other than Section 3.1, Section 4 (Proprietary Rights), Section 6 (Confidential Information), Section 7 (Data Protection, Privacy and Security), Section 8.4 (Effect of Termination), Section 9.5 (Disclaimer of Warranties), Section 10 (Indemnity), Section 11 (Limitation of Liability), Section 12 (Export Control and Anti-Corruption), Section 13 (Governing Law and Venue), and Section 14 (General Provisions).
WARRANTIES
1. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid, and binding obligation of such Party.
2. MinIO Warranties.
  1. MinIO represents and warrants that the Software will substantially conform to the Documentation.
  2. If MinIO is providing Deployment Services to Customer, MinIO represents and warrants that the Deployment Services will be performed in a professional manner in accordance with industry standards for like services.
  3. If MinIO is providing Support Services to Customer, MinIO represents and warrants that the Support Services will be performed in a professional manner in accordance with industry standards for like services, but does not guarantee that every question or problem will be resolved. MinIO’s obligation to provide Support Services does not include services requested as a result of causes or errors which are not attributable to MinIO or its authorized agents. If, upon investigating the cause of the incident, MinIO determines that there is a defect in the Product, MinIO will provide a remedy in the form of a workaround, or another version of the Product that includes a bug fix for the defect. Customer agrees to provide reasonable support information necessary to understand and resolve the incident, which may include access to Customer’s account, configuration files and/or error messages.
3. Warranty Remedies. If Customer reasonably believes the warranty in Section 9.2.1 has been breached, Customer must notify MinIO of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and MinIO shall promptly correct the non-conformity at its own expense if a breach of the relevant warranty occurred. If Customer believes the warranty in Section 9.2.2 has been breached, Customer must notify MinIO of the breach no later than thirty (30) days following the date the Deployment Services were provided, and MinIO shall promptly correct or re-perform the Deployment Services if a breach of the warranty occurred. The remedies stated in this Section 9.3 are the sole remedies, and MinIO’s sole obligation, with respect to Products that fail to comply with the foregoing warranties.
4. Customer Warranties. Customer represents and warrants that (i) it will use the Products in compliance with all laws, rules and regulations applicable to it use; and (ii) it has obtained, and/or will obtain, all applicable third-party licenses necessary to operate any third-party software required in connection with the use of the Products and for MinIO to freely and without interruption perform Products, if applicable. MinIO is not liable or responsible for Customer’s failure to obtain any such licenses.
5. Disclaimer of Warranties. THE PRODUCTS ARE PROVIDED “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPLICITLY PROVIDED HEREIN, MINIO EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, AND OTHER TERMS WHETHER EXPRESS OR IMPLIED, BY COMMON LAW, STATUE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MINIO DOES NOT WARRANT THAT THE FUNCTIONS AND FEATURES IN THE PRODUCTS WILL MEET CUSTOMER REQUIREMENTS OR THAT THE PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED. MINIO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CUSTOMER’S USE OF THE PRODUCTS OR ANY DECISIONS CUSTOMER MAKES AS A RESULT OF USING THE PRODUCTS. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF MINIO TO ANY THIRD PARTY.
INDEMNITY.
1. MinIO Indemnity. This Section 10.1 only applies with respect to Orders by Customer for all AIStor Enterprise purchases including AIStor Enterprise Lite and AIStor Enterprise. Solely in connection with Products purchased by Customer, MinIO shall defend Customer against any third-party claim alleging Customer’s use of the purchased Products as permitted hereunder infringes or misappropriates that third party’s valid United States, European Union, or United Kingdom patent, copyright, trademark or trade secret, and MinIO shall, subject to Section 11, at its expense, indemnify Customer for any damages finally awarded against Customer (including reasonable legal fees) or any amounts agreed in settlement by MinIO in connection with such claim. For clarity, MinIO shall have no indemnification obligations for Products Customer accessed, used, downloaded, or installed via open-source.
2. Response to Claims. This Section 10.2 only applies with respect to Orders by Customer for all AIStor Enterprise purchases including AIStor Enterprise Lite and AIStor Enterprise. If the Products, or parts thereof, become, or in MinIO’s opinion may become, the subject of an infringement claim, MinIO may, at its option: (i) procure for Customer the right to continue using the Products as set forth herein; (ii) replace or modify the Products to make it non-infringing, provided that such replacement or modification does not compromise MinIO’s obligations under this Agreement; or (iii) if options (i) or (ii) are not commercially and reasonably practicable as determined by MinIO, terminate this Agreement and the applicable Order and refund Customer, on a prorated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term.
3. Indemnity Exclusions. This Section 10.3 only applies with respect to Orders by Customer for all AIStor Enterprise purchases including AIStor Enterprise Lite and AIStor Enterprise. MinIO will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by: (i) Customer’s use of a Products not in accordance with the Documentation; (ii) modification of a Products or Documentation by anyone other than MinIO; (iii) the combination, operation, or use of any Products or Documentation with any third party hardware or software where the Product or Documentation would not by itself be infringing absent such combination, operation, or use; (iv) Customer’s failure to make a change or modification requested by MinIO, to implement or configure the Product in a manner set forth by MinIO, or to cease using the Products or Documentation if requested by MinIO; (v) Customer’s continued use of an infringing version of the Products or Documentation after MinIO has provided a non-infringing version and notified Customer of its availability; (vi) MinIO’s open source software; (vii) third party hardware or software; (viii) MinIO’s compliance with, or use of, designs, specifications, inventions, instructions, or technical information furnished by or on behalf of Customer; or (viii) Customer’s use of the Products or Documentation outside of the scope of the license granted to the Customer.
4. Customer Indemnity. Customer shall defend and indemnify MinIO and its Affiliates from and against any claim brought by a third party against MinIO or its Affiliates, as applicable, arising from or related to Customer’s violation of Section 3 (License Grant and Restrictions) of this Agreement.
5. Indemnity Procedure. The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
6. Sole Remedy. THIS SECTION 10 STATES MINIO’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR DOCUMENTATION.
LIMITATION OF LIABILITY
1. Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFITS OR REVENUE (INCLUDING DAMAGE TO BUSINESS REPUTATION OR GOODWILL), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE PRODUCTS.
2. Direct Damages. EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, THE DPA, AND ALL ORDERS SHALL BE LIMITED TO THE TOTAL FEES PAID AND/OR PAYABLE TO MINIO FOR THE APPLICABLE PRODUCT GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO THE FIRST CLAIM. IN NO EVENT SHALL, MINIO HAVE LIABILITY FOR PRODUCTS CUSTOMER ACCESSED, USED, DOWNLOADED, OR INSTALLED VIA OPEN-SOURCE OR FOR AISTOR FREE TIER. THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 REFLECT THE APPROPRIATE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
3. Form of Action. The exclusions and limitations in this Section 11 apply (i) to the maximum extent permitted by applicable law; and (ii) whatever the form of action, whether for breach of contract, misrepresentations, negligence, strict liability, other torts or otherwise, even if the other Party has been told in advance of the possibility of such damages or losses or such damages or losses were reasonably foreseeable.
EXPORT CONTROL AND ANTI-CORRUPTION
1. Export Compliance. The Products and other software or components of the Products which MinIO may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls. The Parties represent that they are in compliance with applicable United States and foreign export controls, economic sanctions, and other trade controls.
2. Anti-Corruption. In performing this Agreement, the Parties agree to comply at all times with the applicable laws related to money-laundering, bribery, and anti-corruption, including the Foreign Corrupt Practices Act of 1977, the UK Anti-bribery Act of 2010, and any other applicable anti-corruption legislations (“Anti-corruption Laws”). Each Party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
GOVERNING LAW AND VENUE
1. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of California, United States without regard to its conflict of laws principles. The Parties hereto exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods from this Agreement and any transaction that may be implemented in connection with this Agreement.
2. Venue. For any disputes arising out of or related to this Agreement, Customer and MinIO each consent to the exclusive personal jurisdiction and venue in the state or federal courts located in Santa Clara County, California, United States.
GENERAL PROVISIONS
1. Assignment. Neither Party may assign this Agreement or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), except that either Party may assign this Agreement in its entirety, upon written notice but without the consent of the other Party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 14.1 shall be void and of no effect. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. MinIO may freely subcontract the Support Services to be provided under this Agreement to third parties.
2. Third Party Beneficiaries. This Agreement is binding on the Parties to the Agreement, and other than as expressly provided in the Agreement, nothing in this Agreement grants any other person or entity any right, benefit, or remedy.
3. Severability. If any provision of this Agreement is found to be unenforceable, the remaining provisions will remain in full force and effect.
4. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
5. Notices. Except as otherwise provided herein, all notices under this Agreement must be in writing, in English, and sent to the addresses specified by the Parties. All notices are deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices regarding a legal claim. All notices to MinIO shall also be sent to legal@min.io.
6. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party is solely responsible for supervision, control, and payment of its personnel. MinIO may subcontract services to third parties or Affiliates so long as (i) subcontractors agree to protect Customer’s Confidential Information in a manner consistent with this Agreement, and (ii) MinIO remains responsible to Customer for performance of its obligations in connection with this Agreement.
7. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay it its performance under this Agreement due to any cause beyond its reasonable control, including, without limitation, an act of war, government, terrorism, an earthquake, flood, weather, accident, embargo, riot, sabotage, or labor shortage or dispute, or the failure of the Internet, phone system, or any public utility. The delayed party shall give the other party notice of such cause and shall use commercially reasonable efforts to correct such failure or delay in performance.
8. Third Party Software or Hardware. MinIO partners may provide the Products with third party software or hardware that are not a part of the Products. These third-party software and hardware are not required to run the Products and are subject to their own terms. The terms either (i) accompany the third-party software or hardware; (ii) can be viewed online at the relevant third party’s website; or (iii) obtained from the applicable third-party. If Customer does not agree to abide by the applicable terms for such third-party hardware or software, then Customer shall not use them.
9. United States Government Customers. This Section only applies to Public Sector Customers as defined below:
  1. “Public Sector Customers” are Customers authorized to use Products pursuant to an Order under the Agreement and are a United States Federal agency or department (as well as any eligible ordering activity purchasing through a Federal Supply Schedule Contract, as defined in GSA Order OGP 4800.2I or its successor) but only to the extent the Products are being used in Customer’s user’s official capacity as a U.S. Federal Government official, employee or agent for the Customer’s and its Affiliates internal use (“Official Use”).
  2. The Products and its Documentation are “Commercial items,” “Commercial computer software,” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplemental (“DFARS”). Pursuant to FAR FAR 12.212, DFARS 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Software and its documentation subject to the terms of this Agreement.
  3. MinIO acknowledges that U.S. Federal Agencies may be required to disclose information requested under the Freedom of Information Act as set forth in 5 U.S.C. §552 (“FOIA”) unless an exemption applies. The Documentation, Products, and MinIO Materials are MinIO’s Confidential Information. Public Sector Customers must notify MinIO in writing prior to releasing any Documentation, Products, and/or MinIO Materials in response to a FOIA request and will provide MinIO the opportunity to review and object to the proposed disclosure.
  4. Section 10.4 (Customer Indemnity) shall not apply to Public Sector Customers.
10. Evaluations. All MinIO trials, evaluations, and POCs (collectively, “Trial License”) are subject to this Agreement. Sections 3, 4.1, 4.2, 4.5, 6, 9.5, 12, 13, and 14 and the applicable definitions in Section 1 of this Agreement apply to this Trial License, with the Trial License being deemed as “Products” in those sections.
11. Modification or Substitution of Products. MinIO has the sole discretion, at any time, to change, substitute, or modify the Products. MinIO will use commercially reasonable efforts to provide at least thirty (30) calendar days’ prior notice when any Product is no longer going to be available for purchase.
12. Modifications, Variations, and Updates. Except as expressly provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Any terms, conditions or other provisions set forth on any Customer’s purchase order, procurement portal, request for proposal (or other questionnaire), preprinted form, or other non-MinIO ordering document are hereby rejected by MinIO and shall be null and void. MinIO reserves the right to update this Agreement without prior notice to Customer and post new terms online.
13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the Products and supersedes all prior agreements, proposals, understandings, or representations, whether written or oral, concerning the subject matter herein. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.