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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”). This Agreement shall apply to any order form,
sales quotation, proposal, purchase order or other ordering document that references this
Agreement (each an “Order Form”). 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, including one controller as designated in the Order Forms
(the “Software”) for internal business purposes only for the
quantity of units in the Order Form. 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; (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;
(i) use the Software in support of any nuclear proliferation, chemical weapon, biological
weapon or missile proliferation activity; or (j) configure the Software to collect any
protected health information or payment/financial information. End User shall
not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct
product thereof (i) in violation of any applicable 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 any country for which the United States
or any other government, or any agency thereof, at the time of export requires an export
licence or other governmental approval, including 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, without first obtaining such license or approval. 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 or beta 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 MAINTENANCE AND SUPPORT.

“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 updates made generally commercially available by
AppDynamics in its sole discretion. Subject to End User’s payment of the fees set forth
in the applicable Order Form(s), AppDynamics will (a) provide Maintenance and Support for
the Software, 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 time-limited licenses for the Software (as set forth in
an Order Form, “Subscription Licenses”), the fees for Maintenance and Support are included
in the fees for the Software. For perpetual licenses, (i) AppDynamics shall invoice End User
the applicable fees for Maintenance and Support (“Maintenance and Support Fees”) upon execution
of the Order Form, and (ii) subject to payment of the Maintenance and Support Fees, AppDynamics
will provide Support for the Maintenance and Support period set forth in the Order Form, as
it may be renewed (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 TRAINING AND ENABLEMENT 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 described in an Order Form (or statement of work referencing this Agreement),
if any (“Training and Enablement Services”). If not used, pre-purchased Training and Enablement
Services expire twelve (12) months after the date purchased (unless otherwise set forth in
the applicable Order Form). End User agrees to provide reasonable cooperation and information
as necessary to permit AppDynamics to perform the Training and Enablement Services. End User
will reimburse AppDynamics for travel and expenses (at cost) incurred in connection with the
Training and Enablement Services (if any) by the Invoice Due Date (as defined below). Training
and Enablement Services on End User’s premises will be performed on business days, excluding
holidays and weekends. One workday is equal to eight (8) hours; work on weekends or holidays
equals 1.5 workdays. If End User cancels any scheduled, on-site Training and Enablement Services
less than ten (10) business days before the start date of such Training and Enablement Services,
then AppDynamics will deduct from End User's account the amount of Training and Enablement
Services that were scheduled in any of the ten (10) business days following the date of
cancellation, and End User will fully reimburse AppDynamics for any reasonable travel and
expenses incurred by AppDynamics for such Training and Enablement Services (and for any
Training and Enablement Services rescheduled by End User) for which AppDynamics is unable
to obtain a refund. During the License 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 Training and Enablement 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 applicable License 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 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. All amounts due under this Agreement shall be paid by End User in
full without any set-off, counterclaim, deduction or withholding (other than any deduction
or withholding of tax as required by law). If requested by AppDynamics, End User will
obtain and furnish to AppDynamics tax receipts or other certificates issued by the
competent taxation office showing the payments of the withholding tax within a reasonable
time after payment. 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
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, the Software, 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 Training
and Enablement 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 term of this Agreement begins on the Effective Date and will remain in effect until all
Subscription Licenses (and Maintenance and Support Terms, if applicable) expire or until
this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs
first (the “Term”). This Agreement may be renewed at any time by execution of an Order Form
referencing this Agreement, and any 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 then-current
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 (such notice must be provided by End User to noautorenew@appdynamics.com).
Any such renewal terms shall be deemed part of the License Term or Maintenance and Support
Term, as applicable. If either party commits a material breach 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. Either party may also terminate this Agreement upon written notice if
the other party suspends payment of its debts or experiences any other insolvency or
bankruptcy-type event. Upon expiration or termination of this Agreement for any reason,
(i) with respect to Subscription Licenses, all rights granted to End User shall terminate
and End User shall 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,
all material respects, conform to the functionality described in the then-current
Documentation for the applicable Software version. End User must notify AppDynamics
in writing of any warranty breaches within such warranty period. 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 repair or replace 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 the license to the affected Software upon written notice
and AppDynamics shall promptly 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).

6.2 WARRANTY DISCLAIMER.

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.
AppDynamics is not responsible for any delays, delivery failures, or any other loss or
damage resulting from the transfer of data over communications networks and facilities,
including the Internet, and End User acknowledges that the Software and Documentation may
be subject to limitations, delays and other problems inherent in the use of such
communications facilities. The Software is not fault-tolerant and is not designed or
intended for use in hazardous environments, including without limitation, in the
operation of aircraft or other modes of human mass transportation, nuclear or
chemical facilities, life support systems, implantable medical equipment, motor
vehicles or weaponry systems, or any other application in which failure of the
Software could lead to death or serious bodily injury of a person, or to severe
physical or environmental damage (each, a “High Risk Use”). AppDynamics expressly
disclaims any express or implied warranty or representation of fitness for High Risk Use.

7. INDEMNIFICATION.

7.1 BY APPDYNAMICS.

AppDynamics agrees at its expense to defend End User against (or, at AppDynamics’ option,
settle), 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 or its agent;
(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 and its affiliates, its suppliers and
its resellers against any third party claim to the extent such claim arises from or is made
in connection with 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), 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) 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 reasonable control and not due to its fault or negligence.

10. DATA COLLECTION.

End User acknowledges that 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. If End User provides AppDynamics with any personally
identifiable information (“personal data”), End User represents and warrants that such
information is processed in accordance with the provisions of all applicable data protection
legislation and that End User has all right and consents necessary to provide such
personal data to AppDynamics. End User will indemnify AppDynamics for reasonable costs
and other amounts that AppDynamics may incur relating to any breach of this Section.

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 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 (other than an AppDynamics Order Form),
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. End User may not assign this Agreement
without the prior written approval of AppDynamics and any purported assignment in violation of
this section shall be void; AppDynamics may assign, transfer or subcontract this Agreement
in whole or in part. Upon any assignment of this Agreement by End User that is approved
by AppDynamics, 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 assignment. End User agrees that AppDynamics
may refer to End User by its 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 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 twenty-four (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 designated support contacts.
The Order Form may indicate a maximum number of designated support contacts for End User’s
service level. End User will provide its designated 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 or
significantly delay AppDynamics’ ability to identify and fix the reported error.
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: The AppDyanamics’ End of Life Policy is as follows:

Definitions:

• “Mainstream Support” means support calls are accepted and the version is maintained
with bug fix releases and patches.
• “Extended Support” means support calls are accepted however the version is not maintained.
• “Out of Support” means no support calls are accepted and the version is not maintained.

AppDynamics provides Mainstream Support for a period of twelve (12) months from release of
a version of the Software. Following that period, AppDynamics provides Extended Support
for a further period of twelve (12) months. For example, if version 4.0 was released in
December of 2014, Mainstream Support would be provided for version 4.0 until December of
2015. Extended Support for version 4.0 would then 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 percent (10%)
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% (not to exceed $280)
90.0% - < 95.0% 10% (not to exceed $560)
80.0% - < 90.0% 20% (not to exceed $840)
70.0% - < 80.0% 30% (not to exceed $1120)
60.0% - < 70.0% 40% (not to exceed $1400)
< 50% 50% (not to exceed $2800)

SECURITY INFORMATION.

Certifications AppDynamics is SOC 2 Type II compliant, meaning it has been independently
audited to verify the validity and functionality of its control activities and processes.
Customers may request AppDynamics’ report at any time. AppDynamics’ data center provider
is also SOC 2 Type II compliant. In addition, AppDynamics is EU Safe Harbor certified.
Secure Connections Agents initiate connections to a single Controller, which can either
be hosted on-premise by the customer or by AppDynamics via the AppDynamics’
software-as-a-service platform. Agents also support outbound HTTP proxies for customers using
these security mechanisms. For Software user interface access, AppDynamics uses encryption
terminated at the server. Access Controls to Data Access to collected data and data
collection features is restricted to authenticated customer users by role-based access
controls (RBAC). In addition, customer users do not have native access to run queries on
the Controller’s MySQL database. Availability Servers for the software are operated
in fault-tolerant architecture in a manner designed to ensure availability. Data is
backed up nightly and stored redundantly. AppDynamics also provides an off-site backup
service. Software security updates and patches are evaluated by engineers and are deployed
based upon the security risks and stability benefits they offer to the Software and
End Users. Security Access to the Software platform infrastructure and data by
AppDynamics personnel is secured by authentication methods including public key authentication,
passwords and network access control lists. Infrastructure and data access is restricted to
AppDynamics’ employees and contractors subject to confidentiality agreements. System and
network activity for the Software are regularly monitored by a team of engineers. Failed authentication
attempts are audited and engineers are paged so that intrusions or threats can be
investigated. Standard firewall policies are deployed to block access except to ports required for
Software and Agent communication. Sensitive Data AppDynamics recommends on-premise
(rather than software-as-a-service) deployments for customers subject to heightened
regulatory oversight of data. More Information For more information on data privacy
or security processes please contact help@appdynamics.com or your account
representative. To report a suspected security breach, contact security@appdynamics.com.

AppDynamics Proprietary and Confidential * Revision July 1, 2015
Release History

Release History

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4.3.16.0

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4.1.7.0

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4.1.5.0

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4.1.4.0

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4.1.3.0

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4.1.2.0

This version
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4.1.1.0

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4.1.0.0

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4.0.6.0.1

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4.0.6.0

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4.0.0.0b8

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4.0.0.0b7

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4.0.0.0b6

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4.0.0.0b5

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4.0.0.0b4

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