TrueNAS Enterprise EULA

TrueNAS Enterprise Terms of Service Important - Please Read This EULA Carefully

PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (EULA) BEFORE CLICKING THE AGREE OR DOWNLOAD BUTTON. THIS AGREEMENT IS A LEGALLY BINDING DOCUMENT BETWEEN YOU AND IXSYSTEMS, INC. DBA TRUENAS. BY CLICKING AGREE OR THE “DOWNLOAD” BUTTON, DOWNLOADING, INSTALLING, ACTIVATING, OR USING THE TRUENAS ENTERPRISE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT INSTALL, ACTIVATE, OR USE THE TRUENAS ENTERPRISE SOFTWARE.

1. Escalation. Before initiating arbitration, the parties shall attempt to resolve any dispute arising out of or relating to this Agreement through the following escalation process:
   1. Level 1 (Days 1-15): The aggrieved party shall provide written notice of the dispute to the other party. The parties shall engage in good-faith negotiation at the operational level to resolve the dispute.
   2. Level 2 (Days 16-30): If unresolved, the dispute shall be escalated to executive-level representatives (Vice President or above) of each party for resolution.
   3. Level 3 (Days 31-45): If still unresolved, either party may initiate non-binding mediation under the Commercial Mediation Procedures of the American Arbitration Association (the “AAA”).
2. Binding Arbitration. If the dispute remains unresolved after the escalation process in subsection (a), either party may initiate confidential binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (the “AAA Rules”) seated in Wilmington, Delaware. The arbitration shall be conducted by a single arbitrator, and a decision shall be rendered within six (6) months of the commencement of arbitration proceedings.
3. Injunctive Relief. Notwithstanding the foregoing, either party may seek preliminary injunctive or other equitable relief in the state or federal courts located in Wilmington, Delaware to protect its intellectual property rights, trade secrets, confidential information, or data access rights under this Agreement, without first completing the escalation process in subsection (a).
4. Cost Allocation. Each party shall bear its own costs and attorneys’ fees in connection with the escalation process and arbitration, except that the prevailing party in arbitration shall be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party. TrueNAS shall bear AAA administrative fees that exceed the equivalent court filing fees.

To the fullest extent permitted by applicable law, no arbitration under this EULA will be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise. Any litigation relating to this EULA shall be subject to the exclusive jurisdiction of the United States District Court for the District of Delaware and the state courts of the State of Delaware, with venue lying in Wilmington, Delaware. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to conflict of law principles.

EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

1.1 “Company,” “iXsystems,” or “TrueNAS” refers to iXsystems, Inc., d/b/a TrueNAS (“TrueNAS”), including its subsidiaries and affiliates under common control.

1.2 “TrueNAS Enterprise Software” refers to the TrueNAS Enterprise storage management software.

1.3 “TrueNAS Device” means the TrueNAS hardware storage appliances and peripheral equipment, whether provided by TrueNAS or a third party.

1.4 “Product” means, individually and collectively, the TrueNAS Enterprise Software and the TrueNAS Device provided by TrueNAS.

1.5 “Open Source Software Components” means various open source software components licensed under the terms of applicable open source license agreements, each of which has its own copyright and its own applicable license terms.

1.6 “Licensee,” “You,” or “Your” refers to the person, organization, or entity that has agreed to be bound by this EULA including any employees, affiliates, and third party contractors that provide services to You.

1.7 “Agreement” refers to this document, the TrueNAS Enterprise End User License Agreement.

1.8 “Authorized Users” means employees and contractors of Licensee who are authorized by Licensee to access and use the Product for Internal Business Purposes under the rights granted to Licensee pursuant to this Agreement.

1.9 “Internal Business Purposes” means any use of the TrueNAS Enterprise Software by Licensee or its Authorized Users in connection with Licensee’s business operations, including the use of TrueNAS Devices to host, store, or deliver managed services or data services to Licensee’s own customers. Internal Business Purposes excludes the resale, sublicense, or redistribution of the TrueNAS Enterprise Software itself.

1.10 “Confidential Information” means all non-public information disclosed by one party to the other, whether orally, in writing, or by inspection, including but not limited to software architecture, source code, algorithms, APIs, product roadmaps, customer lists, pricing, deployment configurations, and usage patterns. Confidential Information does not include information that: (a) is or becomes publicly available without breach of this Agreement; (b) was known to the receiving party prior to disclosure; (c) is independently developed without reference to the disclosing party’s Confidential Information; or (d) is rightfully received from a third party without restriction. For the avoidance of doubt, benchmark results published in accordance with Section 3.0 shall not constitute Confidential Information.

1.11 “Material Breach” means any breach of this Agreement that substantially impairs the value of this Agreement to the non-breaching party and that is not cured within the applicable cure period set forth in Section 4.10.

1.12 “Authorized Purchase” means the purchase of a Product directly from TrueNAS or through a TrueNAS-authorized reseller, as evidenced by an invoice, purchase order, or similar documentation.

Subject to the terms set forth in this Agreement, TrueNAS grants You a non-exclusive, non-transferable, perpetual, limited license without the option to sublicense, to use the TrueNAS Enterprise Software on Your TrueNAS Device(s) in accordance with Your Authorized Purchase and use of a TrueNAS Device(s) for Your Internal Business Purposes. This use includes but is not limited to using or viewing the instructions, specifications, and documentation provided with the Product.

Licensee shall:

1. Use TrueNAS Enterprise Software in compliance with all applicable laws, including export control (Section 5.0), data protection (Section 6.0), and applicable sanctions laws;
2. Maintain the confidentiality of license keys, credentials, and administrative access, and implement reasonable physical and logical access controls;
3. Promptly apply all critical security patches and updates released by TrueNAS within ninety (90) days of release, unless TrueNAS specifies a different timeline;
4. Maintain current backups of all data stored on TrueNAS Devices in accordance with industry best practices;
5. Implement and maintain appropriate cybersecurity measures (including encryption, access controls, and network segmentation) consistent with industry best practices for enterprise storage systems;
6. Ensure that appropriate internal incident response procedures are in place to detect, investigate, and respond to any suspected security breach, unauthorized access, or misuse of the TrueNAS Enterprise Software;
7. Ensure that all Authorized Users comply with the terms of this Agreement.

The perpetual license granted in Section 2.0 permits continued use of the TrueNAS Enterprise Software version installed at the time of license grant. Access to software updates, patches, and new versions is available during the applicable Support Term only, as described in Section 4.8. Continued use of the TrueNAS Enterprise Software after expiration of the Support Term is permitted, but without access to updates or support services.

TrueNAS Enterprise Software is authorized for use only with a TrueNAS Device identified by a specific serial number, approved by TrueNAS, and linked to a valid digital license key installed on the TrueNAS Device. The license is not transferable to another TrueNAS Device without written approval from TrueNAS. The TrueNAS Enterprise Software is protected by copyright laws and international treaties, as well as other intellectual property laws, statutes, and treaties. The TrueNAS Enterprise Software is licensed, not sold to You, the end user. You do not acquire any ownership interest in the TrueNAS Enterprise Software, or any other rights to the TrueNAS Enterprise Software, other than to use the TrueNAS Enterprise Software in accordance with the license granted under this Agreement, subject to all terms, conditions, and restrictions. TrueNAS reserves and shall retain its entire right, title, and interest in and to the TrueNAS Enterprise Software, and all intellectual property rights arising out of or relating to the TrueNAS Enterprise Software, subject to the license expressly granted to You in this Agreement.

The TrueNAS Enterprise Software may contain TrueNAS’ proprietary trademarks, trade secrets, and collateral. TrueNAS strictly prohibits the acts of decompiling, reverse engineering, or disassembly of the TrueNAS Enterprise Software, except as expressly permitted below. You agree to use commercially reasonable efforts to safeguard TrueNAS’ intellectual property, trade secrets, or other proprietary information You may have access to, from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify TrueNAS if You become aware of any infringement of the TrueNAS Enterprise Software and cooperate with TrueNAS in any legal action taken by TrueNAS to enforce its intellectual property rights.

Notwithstanding the foregoing prohibition on reverse engineering, Licensee may: (i) reverse engineer, decompile, or disassemble the TrueNAS Enterprise Software to the extent required by applicable law for interoperability purposes; (ii) exercise rights granted by applicable Open Source Software Component licenses (e.g., GPL, LGPL, AGPL) with respect to those Open Source Software Components; and (iii) conduct security research on the TrueNAS Enterprise Software for the purpose of identifying vulnerabilities, provided that Licensee first notifies TrueNAS and coordinates responsible disclosure. If TrueNAS does not acknowledge the reported vulnerability within fourteen (14) days of notification, or does not release a patch or provide a remediation timeline within ninety (90) days of notification, Licensee may publicly disclose the vulnerability.

By accepting this Agreement, You agree not to disclose, copy, transfer, or publish benchmark results relating to the Product without first providing TrueNAS at least five (5) business days’ advance written notice and a reasonable opportunity to verify the accuracy of the benchmark methodology and results. TrueNAS may, at its option, publish a response to any benchmark results disclosed by Licensee.

You agree not to use, or permit others to use, the TrueNAS Enterprise Software beyond the scope of the license granted under Section 2, unless otherwise permitted by TrueNAS, or in violation of any law, regulation or rule, and you will not modify, adapt, or otherwise create derivative works or improvements of the TrueNAS Enterprise Software. By accepting this Agreement, You are responsible and liable for all uses of the Product through access thereto provided by You, directly or indirectly.

Notwithstanding anything to the contrary in this EULA, TrueNAS may temporarily suspend Your license to any portion or all of the TrueNAS Enterprise Software if TrueNAS reasonably determines that:

1. There is a threat or attack on any of the TrueNAS intellectual property rights, the TrueNAS Software, or applicable support services;
2. You or any of Your Authorized Users’ use of the TrueNAS intellectual property rights, the TrueNAS Software, or support services disrupts or poses a security risk to the TrueNAS intellectual property rights, the TrueNAS Software, support services, or to any other customer or vendor of TrueNAS;
3. You, or any of Your Authorized Users, are using the TrueNAS intellectual property rights, the Software, or services for fraudulent or illegal activities;
4. TrueNAS’ provision of the TrueNAS Enterprise Software to You or any of Your Authorized Users is prohibited by applicable law.

Reversion of License and Data Control Upon Revocation

Notwithstanding any other provision in this Agreement, upon the permanent revocation of the TrueNAS Enterprise Software license, the functionality of the software installed on Your TrueNAS Device(s) will automatically revert to the terms and conditions of the then-current TrueNAS Community Edition License. In all cases of license revocation, Licensee shall retain full read and write access to all data stored on the TrueNAS Device(s). TrueNAS shall have no obligation to provide maintenance, support, or updates for the reverted Community Edition. Any features or functionality exclusive to the TrueNAS Enterprise Software, including but not limited to high-availability data protection and certain specialized support services, will cease to operate upon reversion.

For the avoidance of doubt, reversion to Community Edition shall not affect Licensee’s ability to access, read, write, export, or migrate data stored on the TrueNAS Device(s) using standard Community Edition storage protocols. All storage pools, datasets, and file systems shall remain fully accessible.

TrueNAS may request reasonable information from Licensee to confirm compliance with the scope of the license granted under this Agreement. Licensee shall cooperate in good faith with such requests.

This Agreement, together with any associated purchase order, service level agreement, and all other documents and policies referenced herein, constitutes the entire and only agreement between You and TrueNAS for use of the TrueNAS Enterprise Software, and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by Your duly authorized representatives and those of TrueNAS.

No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.

If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.

For any TrueNAS Enterprise Software licensed directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. Company’s proprietary software embodied in the Product: (a) was developed at private expense and is in all respects Company’s proprietary information; (b) was not developed with government funds; (c) is Company’s trade secret for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government’s use, duplication or disclosure of such software is subject to the restrictions set forth by the Company and Licensee shall receive only those rights with respect to the Product as are granted to all other end users.

You agree to comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act (FCPA). You will not make any improper payments or offer anything of value to obtain an unfair business advantage. You will indemnify and hold harmless Company from any breach of this provision.

TrueNAS retains all rights, titles, and interests in the TrueNAS Enterprise Software and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, registration keys, renewals, and extensions of such rights.

If You have any questions about this Agreement, or if You want to contact TrueNAS for any reason, please email legal@truenas.com.

You may be entitled to support services from TrueNAS after purchasing a Product or a support contract. TrueNAS will provide these support services based on the length of time outlined in the purchased support contract. This maintenance and support is only valid for the length of time that You have purchased with Your Product. TrueNAS may from time to time, and at their sole discretion, vary the terms and conditions of the maintenance and support agreement based on different business, environmental, and personnel factors. Any variations will be notified via email and the support portal. For more information on our Maintenance and Support contract, refer to https://www.truenas.com/support.

TrueNAS will not be deemed to be in default of any of the provisions of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond TrueNAS’ reasonable control.

TrueNAS may terminate this Agreement upon thirty (30) days’ written notice if Licensee commits a Material Breach that remains uncured after the applicable cure period. TrueNAS may terminate immediately upon written notice if Licensee commits a breach under Section 3.0(C) (fraudulent or illegal activities) or Section 3.0(E) (legal prohibition). Upon termination, rights to use the TrueNAS Enterprise Software will immediately cease, subject to the data access rights in Section 3.0. The following Sections shall survive termination or expiration of this Agreement: Dispute Resolution, 1.0 (Definitions), 3.0 (License Restrictions, including Reversion and data access provisions), 4.3 (Severability), 4.6 (Title), 4.13 (Notice Provisions), 4.14 (Limitation Period), 6.0 (Data Collection and Privacy), 8.0 (Limitation of Liability), 9.0 (Indemnification), and 10.0 (Confidentiality).

TrueNAS uses Open Source Software Components in the development of the TrueNAS Enterprise Software. Open Source Software Components that are used in the TrueNAS Enterprise Software are composed of separate components each having its own trademarks, copyrights, and license conditions. To the extent any Open Source Software Component license terms conflict with this EULA, the Open Source Software Component license terms shall control solely with respect to those Open Source Software Components. TrueNAS shall maintain and make available upon request a current Software Bill of Materials (SBOM) listing all Open Source Software Components included in the TrueNAS Enterprise Software, including component name, version, and applicable license. TrueNAS represents and warrants that, as of the date of delivery of each Software release, it complies with all applicable Open Source Software Component license obligations, including providing complete source code, license texts, and attribution notices as required by the applicable licenses.

Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without TrueNAS’ prior written consent. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. TrueNAS may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon, and ensures to the benefit of, the parties hereto and their respective permitted successors and assigns.

All notices required or permitted under this Agreement shall be in writing and shall be deemed received: (a) upon delivery, if delivered personally; (b) upon confirmation of receipt, if sent by email to the addresses specified below; (c) one (1) business day after deposit with a nationally recognized overnight courier; or (d) three (3) business days after deposit in the U.S. mail, postage prepaid, certified or registered, return receipt requested. Notices to TrueNAS shall be sent to: iXsystems, Inc., Attn: Legal Department, legal@truenas.com. Notices to Licensee shall be sent to the address or email provided in the applicable purchase order or registration.

Any claim or cause of action arising out of or relating to this Agreement must be commenced within two (2) years after the cause of action accrues, or such claim shall be permanently barred.

Licensee acknowledges that the Product is subject to U.S. and international export control laws and regulations, including trade sanctions and export restrictions. TrueNAS makes no representation or warranty that the Product may be lawfully exported, re-exported, or imported to Licensee’s jurisdiction, and Licensee is solely responsible for determining that its use of the Product does not violate any such laws or regulations. TrueNAS shall have no liability to Licensee for any failure to comply with any export control laws.

TrueNAS Enterprise Software may collect non-sensitive technical and operational system information relating to Your use of the Product, including hardware model identifiers, software version numbers, pool topology, storage capacity utilization, feature usage flags, and system health metrics, which may be provided directly or indirectly through automated means. Usage of TrueNAS Enterprise Software, device status and system configuration are allowed according to TrueNAS’ privacy policy, available at https://www.truenas.com/privacy-policy/.

TrueNAS Enterprise Software will not collect and share sensitive User information including email addresses, names of systems, pools, datasets, folders, files, credentials, IP addresses, hostnames, or any other information that directly or indirectly identifies a natural person.

By accepting this Agreement and continuing to use the Product, you agree that TrueNAS may use any information provided through direct or indirect means in accordance with our privacy policy and as permitted by applicable law, for purposes relating to management, compliance, support, security, update delivery, and product improvement.

Licensee may opt out of automated data collection at any time through the TrueNAS Enterprise Software system settings. Licensee may separately opt out of the use of collected information for marketing purposes by contacting privacy@truenas.com.

The data collected under Section 6.1 is limited to anonymous, aggregated, technical and operational telemetry that does not contain personal data as defined under applicable data protection laws (including GDPR Article 4(1) and similar frameworks). TrueNAS has designed its telemetry systems specifically to exclude identifiers that could directly or indirectly identify a natural person. Accordingly, the TrueNAS Enterprise Software operates without collecting, transmitting, or otherwise processing personal data, no cross-border transfers of personal data occur through the Software, and the terms of this EULA do not constitute a Data Processing Agreement.

If You voluntarily provide personal data to TrueNAS (for example, through optional support requests or feedback submissions), such data will be processed only for the purpose of responding to Your inquiry, in accordance with applicable data protection laws and the TrueNAS Privacy Policy.

TrueNAS hereby represents and warrants that, during the term of this Agreement, TrueNAS owns or is otherwise authorized to use and provide any Intellectual Property Rights provided by TrueNAS to You under this EULA.

TrueNAS further warrants that, for a period of ninety (90) days following initial delivery of the TrueNAS Enterprise Software (“Warranty Period”), the TrueNAS Enterprise Software will substantially conform to its published documentation. If during the Warranty Period the TrueNAS Enterprise Software fails to substantially conform to its documentation, TrueNAS shall, at its option, (a) repair or replace the non-conforming Software, or (b) refund the fees paid for the non-conforming Software, or (c) with Your agreement, improve the published documentation. This warranty does not apply to defects caused by: (i) modifications not made by TrueNAS; (ii) use outside the scope of the documentation; or (iii) combination with products not approved by TrueNAS. For avoidance of doubt, any hardware components (including TrueNAS Devices) are provided subject solely to the limited hardware warranty accompanying such hardware purchase. Except as expressly set forth in such hardware warranty documentation, TrueNAS disclaims all warranties relating to hardware.

TrueNAS does not make any representations or guarantees regarding uptime or availability of the services except as set forth in any applicable Maintenance and Support contract purchased by You. THE FOREGOING WARRANTY DOES NOT APPLY, AND TRUENAS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD PARTY PRODUCTS OR SOFTWARE, INCLUDING OPEN-SOURCE SOFTWARE THAT MAY BE INCORPORATED AS PART OF THE SOFTWARE AND SERVICES PROVIDED HEREUNDER.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE PRODUCT IS PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRUENAS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TRUENAS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCT WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) IN NO EVENT WILL TRUENAS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE, LICENSEE’S AFFILIATES, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PRODUCT; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TRUENAS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) IN NO EVENT WILL TRUENAS AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT PAID BY LICENSEE TO TRUENAS FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM; OR (II) THE TOTAL SUPPORT FEES PAID BY LICENSEE TO TRUENAS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; (C) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

(D) NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN SUBSECTIONS (A) AND (B) SHALL NOT APPLY TO: (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.0; (II) EITHER PARTY’S WILLFUL BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10.0; (III) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (V) LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; OR (VI) EITHER PARTY’S BREACH OF DATA PROTECTION OBLIGATIONS UNDER SECTION 6.0.

TrueNAS shall defend, indemnify, and hold harmless Licensee from and against any third-party claims, damages, and costs (including reasonable attorneys’ fees) arising from allegations that the Product, as delivered by TrueNAS, infringes any patent, copyright, trademark, or trade secret right of a third party, provided that Licensee: (a) promptly notifies TrueNAS in writing of such claim; (b) grants TrueNAS sole control of the defense and settlement of such claim; and (c) provides reasonable cooperation at TrueNAS’ expense.

If the TrueNAS Enterprise Software becomes, or in TrueNAS’ reasonable opinion is likely to become, the subject of an infringement claim, TrueNAS may, at its option and expense: (i) obtain the right for Licensee to continue using the TrueNAS Enterprise Software; (ii) modify the TrueNAS Enterprise Software to make it non-infringing while maintaining substantially equivalent functionality; or (iii) if options (i) and (ii) are not commercially feasible, terminate this Agreement.

TrueNAS’ indemnification obligations under this Section shall not apply to claims arising from: (a) modifications to the TrueNAS Enterprise Software not made or authorized by TrueNAS; (b) combination of the TrueNAS Enterprise Software with products, software, or data not provided by TrueNAS, where the infringement would not have occurred absent such combination; or (c) Licensee’s use of the TrueNAS Enterprise Software in violation of this Agreement.

Licensee shall defend, indemnify, and hold harmless TrueNAS from and against any third-party claims, damages, and costs (including reasonable attorneys’ fees) arising from: (a) Licensee’s use of the TrueNAS Enterprise Software in violation of this Agreement or applicable law; (b) Licensee’s unauthorized modifications to the TrueNAS Enterprise Software; (c) Licensee’s combination of the TrueNAS Enterprise Software with products, software, or data not provided by TrueNAS; or (d) Licensee’s negligence or willful misconduct in connection with its use of the Product.

The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim; (b) grant the indemnifying party sole control of the defense and settlement (provided that the indemnifying party shall not settle any claim in a manner that imposes obligations on the indemnified party without its prior written consent); and (c) provide reasonable cooperation at the indemnifying party’s expense. The indemnified party may participate in the defense at its own expense.

For the avoidance of doubt, each party’s indemnification obligations under this Section 9.0 are subject to the carve-outs set forth in Section 8.0(D)(I) and are not subject to the aggregate liability cap in Section 8.0(B), except that TrueNAS’ total indemnification liability shall not exceed three (3) times the aggregate fees paid by Licensee to TrueNAS under this Agreement.

During the term of this Agreement and for five (5) years thereafter, each party (the “Receiving Party”) shall: (a) maintain in confidence and not disclose the other party’s (the “Disclosing Party’s”) Confidential Information to any third party, except to employees, contractors, and advisors with a need to know who are bound by obligations of confidentiality at least as protective as those in this Section; and (b) use the Disclosing Party’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement.

If the Receiving Party is compelled by law, regulation, or legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall: (a) provide the Disclosing Party with prompt written notice (to the extent legally permitted) to allow the Disclosing Party to seek a protective order or other appropriate remedy; and (b) disclose only the minimum Confidential Information required by such legal obligation.

Upon termination or expiration of this Agreement, or upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all Confidential Information of the Disclosing Party in its possession or control, and certify such return or destruction in writing. This obligation shall not apply to Confidential Information retained in routine backup systems, provided that such information remains subject to the confidentiality obligations of this Section and such backups are destroyed in the ordinary course of the Receiving Party’s backup retention schedule, not to exceed twelve (12) months.

The obligations of confidentiality under this Section 10.0 shall survive termination or expiration of this Agreement for a period of five (5) years.

You hereby acknowledge that you have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein by clicking accept on this Agreement.