Updated March 12, 2017
Software's mission is to transform software development by providing a development data cloud that analyzes data across the toolchain to quantify the craft of development. Features and functionality are as described on our Website on the Subscription Date, as such features and functionality may change periodically. We operate our Service on our providers' hosting servers to enable Authorized Users to access and use our Service via the web. By using or accessing any part of our Service, you are representing that you have the capacity and authority to enter into this agreement and are consenting on behalf of yourself and/or as an authorized representative of your company, as applicable, to be bound by this agreement.
Software distributes the Service online. You are solely responsible for providing, installing, and maintaining at your own expense all equipment, facilities, and services necessary to enable Authorized Users' access and use of the Service through the interface, including, without limitation all computer hardware, software, and Internet access.
You are solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. Software has no liability with respect to any use or misuse of such identifiers or passwords, and any use other than as provided in this Agreement will be considered a breach of this Agreement by you.
Software has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure your data from accidental loss and from unauthorized access, use, alteration, or disclosure. Each hosting provider for the Service has or will have similar contractual obligations to Software. Software does not represent that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements (see Section 15.3).
You will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by you or Authorized Users, or otherwise through your facilities, equipment, identifiers, or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party, or this Agreement.
No provision of this Agreement includes the right to, and you will not, directly or indirectly:
In the event you violate any of the terms in this section, in addition to any other remedies available at law or in equity, Software will have the right, in its discretion, to immediately suspend your and Authorized Users' use and access to the Service.
This Agreement will commence on the Subscription Date and, unless terminated early in accordance with Section 7, continue for the number of months or year(s) specified in the Subscription as measured from the Subscription Date (the "Initial Period").
It is your responsibility to properly cancel your account with Software. You can cancel your account at any time by going into your account settings.
Any and all rights granted to you with respect to the Service and Technology, and any and all rights granted to Software with respect to your data except as written in Section 11.2, will terminate on the effective date of termination. You agree return to Software any and all Confidential Information of Software in your possession or control. Software will have no obligation to provide the Service to you or Authorized Users after the effective date of the termination. You will pay to Software any amounts payable for your and Authorized User's use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 6. This Section 7 and Sections 4, 6, and 10-15 will survive the expiration or earlier termination of this Agreement.
Software's only obligation with respect to any electronic information transmitted or received by you or Authorized Users in relation to use of the Service is to promptly delete or destroy any information that is stored in the Service database on the effective date of termination upon your request. You acknowledge that the duration of the retention of such information is determined by the terms of the applicable Free Plan or Paying Plan. In addition, you acknowledge that although information in the Service database will be deleted from its transaction servers, Software may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Software's customary procedures and policies. In addition, Software may retain certain information as provided in Section 11.2.
Software may terminate this Agreement immediately upon notice to you if you breach any provisions in the Agreement, in order to comply with applicable laws or regulations, or if you default in the timely payment of any amounts due Software under a Paying Plan.
Excluding scheduled maintenance windows, Software will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of the Service for each month during the term of this Agreement. The Service will be deemed "available" so long as Authorized Users are able to login to the Service interface and access data.
If you are under a Paying Plan, Software will provide in-product and email support ("Support"). Although no response times are guaranteed, Software will use commercially reasonable efforts to respond to such support requests within 48 hours. Software may delegate the performance of certain portions of the Support to third parties, but will remain responsible to you for delivery. In the event any Support is not performed with reasonable skill, care, and diligence, Software will re-perform the Support to the extent necessary to correct the defective performance, and you acknowledge that re-performance will be your sole and exclusive remedy for any defective performance.
Subject to this Agreement, Software will make the Service available to you and Authorized Users during the Service Period, and Software hereby grants to you, during the Service Period, a nonexclusive, nontransferable, limited right to enable Authorized Users to access and use the Service through the interface and the Website, and to access and use Software's technical and operations documentation and Agents (as defined in Section 9) in support solely for your internal, business use.
Software will make various application program interfaces (APIs), agents, libraries, and other materials available at the Website or through the Service at its discretion to support your access and use of the Service (collectively, "Agents"). You acknowledge and agree that:
You agree to review any electronic documentation that accompanies the Agents or is identified in a link provided to you to determine which portions of the Agents are open source and are licensed under open source license terms. To the extent any such license terms require that Software provide you the rights to copy, modify, distribute, or otherwise use any open source software in the Agents that are inconsistent with the limited rights granted to you in this Agreement, then such rights in the applicable open source license terms will take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, you acknowledge and agree that all third-party content is governed by its respective terms and such terms are solely between you and the applicable licensor. You agree to comply with such third-party terms (including open source license terms), as applicable, and Software has no liability with respect to third-party content under this Agreement.
As used in this Agreement, "Confidential Information" means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business, or other nature. However, Confidential Information does not include any information that:
Each party reserves any and all right, title, and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the "Recipient") of the other party (the "Discloser") will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which the Discloser provides it. This section will not be interpreted or construed to prohibit:
In the event of any breach or threatened breach by the Recipient of its obligations under this section, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality will survive expiration or termination of this Agreement.
You retain ownership, right, and responsibility to all text, software, audio, video, images, or other content that you and/or any Authorized User run on or through the Service (collectively "Customer Data"), subject only to the limited rights expressly granted in this Agreement and intellectual property rights. You are solely responsible, and Software assumes no liability for the Customer Data that Authorized Users or other third parties post, send, or otherwise make available over or through the Service.
In order to provide and support the Service for your benefit, you hereby grant Software a worldwide, non-exclusive, royalty-free license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive Customer Data. You agree that, so long as no Confidential Information is publicly disclosed, Software may:
As used in this Agreement, "Technology" means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Software in connection with the performance of the Service or the Support, or made available by Software to you, any Authorized User, or any third party in connection with the Service or the Support. Without limiting the above, Technology includes the products, services, and technology made available through the Website, the Agents, the Service interface, and any Software branded or co-branded websites (including sub-domains, widgets, and mobile versions).
The Service and Technology constitute or otherwise involve valuable intellectual property rights of Software, and Software will own all right, title, and interest in and to the above. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to you, any Authorized User, or any third party under this Agreement. Sections 8-9 describe the entirety of your limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event will you be entitled to access or review any object code or source code. Software reserves all rights to the Service and Technology not otherwise expressly granted herein.
You understand and agree that we will not be liable to you or any third party for any damage, injury, or loss of profits, use, goodwill, or data, or for any incidental, indirect, special, consequential, or exemplary damages, however arising, that result from:
Our liability is limited whether or not we have been informed of the possibility of such damages, and even if a remedy described in this Agreement is found to have failed of its essential purpose. We will have no liability for any failure or delay due to matters beyond our reasonable control.
These limitations will not apply to damages arising out of a party's failure to comply with its confidentiality obligations, indemnification obligations, or payment obligations to Software. Except for their respective indemnity and confidentiality obligations, in no event will either party, their affiliates, directors, employees, or licensors be liable to the other party or any authorized user for any claims, proceedings, liabilities, obligations, damages, losses, or costs in an amount exceeding the fees you paid to Software.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if the non-breaching party has been advised of the possibility of such damage. The above limitations of liability will apply to the fullest extent permitted by law in the applicable jurisdiction.
This section states Software's entire liability and your exclusive remedies for intellectual property rights infringement. You hereby represent and warrant to Software that you have the authority to enter into and perform this Agreement, and that performance of the Agreement's obligations and exercise of its rights do not and will not violate any applicable laws, regulations, or orders.
You hereby represent, warrant, and covenant that:
Software hereby represents, warrants, and covenants to you, if under a Paying Plan, that:
You agree to defend, indemnify, and hold harmless Software and its employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt and expenses (including without limitation attorneys' fees) arising out of or related to:
Software agrees to defend, indemnify, and hold harmless you, if under a Paying Plan, from and against any and all claims, damages, obligations, losses, liabilities, costs, or debt and expenses (including without limitation attorneys' fees) arising out of or related to:
In addition, if the Service or Technology becomes the subject of a claim of infringement of a U.S. copyright or patent, Software will indemnify you, if under a Paying Plan, against such claim provided that you give Software prompt written notice of the claim, allow Software to direct the defense and settlement of the claim, and cooperate with Software as necessary, at Software's expense, for defense and settlement of the claim. If the Service or Technology become, or, in Software's opinion is likely to become, the subject of such a claim, Software will have the right to obtain for you the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted here to such Service or Technology with refund to you of any fees paid for such Service and Technology (less a reasonable charge for the period during which you has had available to it the use of such Service and Technology). Software will have no liability for any infringement claim to the extent it:
Except as expressly provided in this agreement, the services, technology, support, and all other items provided in connection therewith are provided on an "as is" basis without warranties of any kind, either express or implied. Software disclaims all warranties, express or implied, arising by law or otherwise, with respect to any error, defect, deficiency, infringement, or noncompliance in the services, technology, support, or any other items provided by, through, or on behalf of Software under this agreement (including without limitation any implied warranty of merchantability, fitness for a particular purpose, or non-infringement and any implied warranty arising from course of performance, course of dealing, or usage of trade).
Software may assign or delegate these Terms of Service and/or the Privacy Statement, in whole or in part, to any person or entity at any time with or without your consent, including the license grant in Section 11.2. You may not delegate, assign, or transfer this Agreement or any of its rights and obligations under this Agreement, and any attempt to do so will be void.
Except to the extent applicable law provides otherwise, this Agreement between you and Software and any access to or use of the Website or the Service are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions. You and Software agree to submit to the exclusive jurisdiction and venue of the courts located in the city of San Francisco, California.
The Service is provided to the U.S. Government as "commercial items," "commercial computer software," "commercial computer software documentation," and "technical data" with the same rights and restrictions generally applicable to the Service. If you or any Authorized User is using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, you and your Authorized Users must immediately discontinue use of the Service. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
In connection with this Agreement, you will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service, including the transfer and processing of Customer Data.
The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement will constitute one party as an employee, agent, joint venture partner, or servant of another.
Software will have no liability to you, Authorized Users, or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil disturbances or terrorism, or interruptions in power, communications, satellites, the Internet, or any other network that are beyond its reasonable control.
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remainder of the Agreement will remain in full force and effect. Any failure on the part of Software to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
If any information posted on the Website conflicts with any provision of this Agreement, the applicable provision of this Agreement will control. Any terms and conditions of any other arrangement issued by you in connection with this Agreement, which are in addition to, inconsistent with, or different from the terms and conditions of this Agreement, will be of no force or effect. Any affiliate of yours will be deemed a third party for purposes of this Agreement. This Agreement can only be modified only by a written arrangement duly executed by authorized representatives of the parties.