Free License Agreement

Last modified 6 July 2023

This Free License Agreement (“Agreement”), is entered into by and between Portainer, an Auckland NZ company with its principal place of business at 1 Boundary Road, Hobsonville, Auckland 0618, New Zealand and the individual, who by installing the software is agreeing to this Agreement (“You”).

By downloading, installing and/or using the software, you expressly accept and agree to the terms of this agreement. If you are an individual agreeing to the terms of this agreement on behalf of an entity (“Company”), you represent that you have the legal authority to bind that entity. 

By accepting this agreement, you represent that and warrant that any and all information you provide is true, accurate and complete.  

This Agreement may be modified at any time for any reason. Amendments to this Agreement will be effective upon email notification, posting the changes online, or as a notification through the software. You must ensure that you have read, understood, and agree to the terms of this Agreement. Your continued use of the software represents your acceptance and agreement to be bound by the most recent version of this Agreement. 

RECITALS

WHEREAS, the software (the "Software") (including documentation and Open Source Software components provided with such software, as defined below) is technology licensed by Portainer; and;

WHEREAS, You the individual or Company desires to use the Software prior to obtaining a Home & Student or Commercial license to use the Software; 

NOW THEREFORE, the parties hereby agree as follows:

1. Grant of Free License.  Portainer hereby grants to You the Individual or Company, and You the Individual or Company hereby accepts from Portainer, a non-exclusive, non-transferable license without a right to sublicense, to use the Software for internal business purposes only, limited to no more than one (1) server instance and a total of three (3) nodes including the server instance, as defined in our documentation: https://portal.portainer.io/knowledge/what-is-a-node-for-licensing-purposes.

2. Restrictions. You the Individual or Company shall not, and shall not authorize any third party to: (a) copy the Software or allow copies of the Software to be made for any purpose, (b) duplicate the associated documentation for any purpose; (c) modify, alter, create derivative works, reverse engineer, decompile, or disassemble the Software in any manner; (d) sell, sublicense, lease or otherwise transfer the Software in any way; and (e) use the Software in a hosting or service bureau basis or use the Software to provide services to third parties.

3. Confidential Information. Portainer and You the Individual or Company agree to retain in confidence the non-public information, know-how and trade secrets that should reasonably be understood to be confidential by the recipient. The Software and any documentation and the terms and conditions of this Agreement shall be Portainer’s Confidential Information. You agree that Portainer may refer to Company’s name and trademarks in Portainer’s marketing materials and website; however, Portainer will not use Company’s name or trademarks in any other publicity (e.g., press releases and customer references) without Company’s prior written consent. 

4. Term and Termination. Portainer agrees, subject to the terms set forth in this Agreement, to make such Products available to Company for a term to expire on the earlier of: (a) the end of the free period for which you registered to use the Product; or (b) the start date of any Subscriptions for such Product purchased by You or Company from Portainer (“Free Period”). Portainer may also terminate the Free Period at any time and at its sole discretion by providing notice to You.

5. Ownership. Portainer and its suppliers retain all right, title and interest in and to the Software, the license keys issued to use the Software, and in all related patents, copyrights, trademarks, trade secrets and any other intellectual and industrial property and proprietary rights thereto, including registrations, applications, renewals and extensions of such rights.

6. No Warranty. The Software is provided and licensed hereunder on an “AS IS” basis. To the maximum extent permitted by applicable law, Portainer disclaims all warranties, express or implied, with respect to such Software, including but not limited to, implied warranties of merchantability and fitness for a particular purpose or use. 

7. Disclaimer of Liability. PORTAINER SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO THE USE OR OPERATION OF THE SOFTWARE, WHETHER DIRECT, SPECIAL, CONSEQUENTIAL, COLLATERAL, OR INCIDENTAL, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF PROFITS, LOSS OF USE OR INTERRUPTION OF BUSINESS. PORTAINER’S TOTAL LIABILITY FOR DIRECT DAMAGES HEREUNDER SHALL NOT EXCEED ONE U.S. DOLLAR ($1.00). COMPANY MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.

8. Open Source Software. “Open Source Software” means various software components, including open source software and patches to open source software that may be provided to You in connection with the provision of Services that may be part of the Software. The Open Source Software is licensed to You the individual or Company under its own applicable license terms and conditions, which can be found in the open_source_licenses.txt file, the documentation or as applicable, the corresponding source files for the Software.

9. Export Control. Government Regulations. The Software is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, You the individual or Company agrees that: (1) You the individual or Company is not, and is not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) You the individual or Company is not, and is not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) You the individual or Company will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement.

10. General Provisions. (a) The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of New Zealand. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods.  Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. (b) If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be enforced to the full extent possible and without effect on the remaining provisions of this Agreement, which shall remain in full force and effect. (c) The failure of either party to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provision, nor in any way affect the right of either party to enforce each and every provision of this Agreement thereafter. (d) This Agreement may not be assigned by You the individual or Company and any attempted assignment shall be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. (e) The following provisions shall survive termination or expiration of this Agreement: Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10.

This Agreement comprises the entire agreement between You the individual or Company and Portainer, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. In the event of a conflict between the terms of this Agreement and the terms the corresponding email, such conflict will be resolved in the following order: (a) this Agreement; and (b) corresponding email. Any preprinted terms on any Company ordering documents, emails or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Company’s ordering document is signed by Portainer.