Hosted Develocity Evaluation License Agreement

Effective starting: September 1, 2017

Welcome to Gradle! Gradle Inc. (“Gradle”, “we”, or “us”) enables organizations to improve developer productivity and increase operational efficiencies of manufacturing software. Our enterprise software reduces idle time for developers by monitoring and measuring every aspect of your build infrastructure, enabling you to continuously improve the speed and quality of service of your builds. Before you use our Develocity service for evaluation purposes, we need you to agree to a special set of terms.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SERVICE (AS DEFINED BELOW), UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU (“CUSTOMER”) FOR THAT PURPOSE. WE’RE ONLY WILLING TO LICENSE THE SERVICE TO YOU IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE SERVICE OR BY CLICKING “I ACCEPT” BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON’T HAVE SUCH AUTHORITY, OR IF YOU DON’T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SERVICE TO YOU, AND YOU MAY NOT USE IT. THIS AGREEMENT DOES NOT PROVIDE A COMMERCIAL LICENSE AFTER THE TRIAL PERIOD. USE AFTER THE TRIAL PERIOD IS SUBJECT TO THE PARTIES ENTERING INTO AND EXECUTING A SEPARATE WRITTEN AGREEMENT.
This Evaluation License Agreement (this “Agreement”) is by and between Gradle, Inc., a Delaware corporation with its principal place of business at 325 9th Street, San Francisco, CA 94103 (“Gradle”) and the individual or legal entity executing this Agreement as “Customer” (on behalf of its Affiliates, for whom Customer will be responsible hereunder).
1. DEFINITIONS. As used in this Agreement:
1.1 “Affiliate” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
1.2 “Agreement” means, collectively, the terms set forth below, and the attached exhibits, schedules, and amendments hereto, as well as any SOW and Order Schedule agreed to by the parties, each of which are incorporated herein by this reference.
1.3 “Authorized User” means Customer’s employees, representatives, consultants or contractors who are authorized by Customer to use the Service on Customer’s behalf (and solely in connection with their performance of services for Customer), and if applicable, have been supplied user identifications and passwords by Customer (or by Gradle at Customer’s request).
1.4 “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties.
1.5 “Deliver(y)” means making the Service (or Documentation) available to Customer, or the date on which Gradle first makes the Service (or Documentation) available to Customer.
1.6 “Documentation” means the end user manuals and any online help files provided to Customer along with the Service.
1.7 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.8 “Effective Date” is the earlier of the date that you either click “I Accept” to the terms and conditions of this Agreement, or that you first place an order for an evaluation license to the Service.
1.9 “Evaluation Term” means thirty (30) days from the date we make the Service available.
1.10 “Service” means the applications, software, products, and services provided by Gradle.
Other capitalized terms used in this Agreement shall have the meanings set forth herein.
2. LICENSE GRANT AND SERVICES.
2.1 License Grant. Subject to the terms and conditions of this Agreement, Gradle grants to Customer a non-exclusive, non-transferable, term-based, revocable (pursuant to the termination provisions set forth herein) license to use Develocity, during the Evaluation Term, solely for the purpose of evaluating whether to purchase a paid license for the Service, and not for general production use. There is no fee associated with this evaluation license. If customer decide to use the Service for any production purpose, customer will need to buy a paid license (and accept a new agreement for that purpose).
2.2 No “Sale” of Service. Customer acknowledges and agrees that Gradle never sells but only licenses the right to “use” the Service, the Documentation, and related materials, and that no sale or other transfer of any title or ownership or any proprietary interest of any kind whatsoever in or to the Service, Documentation, or related materials is contemplated hereunder.
2.3 Ownership; Proprietary Rights Notices. The Service, Documentation, and related materials supplied by Gradle hereunder, and all Intellectual Property Rights therein or related thereto, are and will remain Gradle’s sole and exclusive property. All rights in and to the Service, Documentation, and related materials not expressly granted to Customer in this Agreement are reserved by Gradle and its suppliers, and there are no implied licenses granted hereunder.
2.4 Feedback. Customer may submit to Gradle bug reports, comments, feedback or ideas about the Service, including without limitation about how to improve the Service. By submitting any Feedback, Customer hereby assigns to Gradle all right, title, and interest in and to the Feedback, if any.
3. LICENSE RESTRICTIONS.
3.1 Restrictions on Use.Customer acknowledges that the Service constitute valuable trade secrets of Gradle and its suppliers. Accordingly, Customer agrees not to, (d) use the Service in any service bureau or time-sharing arrangement, (g) use the Software for any non-evaluative or production purpose; or (h) use the Software beyond the Evaluation Term.
3.2 Terms Applicable to Authorized Users. Customer represents and warrants that each Authorized User is an authorized Customer agent. Customer will be responsible and liable for the acts and omissions of all Authorized Users in connection with this Agreement (such that any act or omission committed by an Authorized User that would, if committed by Customer as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not an Authorized User is a signatory to this Agreement), as well as any and all access to and use of the Service by any Authorized User.
4. DELIVERY, INSTALLATION AND USAGE DATA.
4.1 Delivery. Promptly after the Agreement Effective Date, Gradle will make the Service available for customer. If Updates become available during the Evaluation Term, Gradle will make those available for customer. If Gradle determine the customer bandwidth usage to be significantly excessive in relation to other Gradle customers, Gradle reserve the right to suspend your account or throttle your file hosting until you can reduce your bandwidth consumption.
4.2 Usage data. Customer agrees that Gradle may use the Usage Data to troubleshoot and monitor the Service and to enhance, improve, and develop current and future Service and services and to verify compliance with this Agreement. Gradle will not share your Usage Data with any third parties.
5. NO WARRANTY; DISCLAIMERS. GRADLE PROVIDE THE WEBSITES AND THE SERVICE “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THIS, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE AND THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, EACH OF WHICH IS DISCLAIMED BY GRADLE AND ITS LICENSORS AND SUPPLIERS. GRADLE DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THAT THE INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL GRADLE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, ARISING THAT RESULT FROM

  • THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER-GENERATED CONTENT;
  • YOUR USE OR INABILITY TO USE THE SERVICE;
  • ANY MODIFICATION, PRICE CHANGE, SUSPENSION OR DISCONTINUANCE OF THE SERVICE;
  • THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE;
  • UNAUTHORIZED ACCESS TO OR ALTERATIONS OF YOUR TRANSMISSIONS OR DATA;
  • STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE;
  • ANY OTHER USER INTERACTIONS THAT YOU INPUT OR RECEIVE THROUGH YOUR USE OF THE SERVICE; OR
  • ANY OTHER MATTER RELATING TO THE SERVICE

OR RELATING TO THIS AGREEMENT EVEN IF GRADLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT A DISCLAIMER ON DIRECT DAMAGES IS NOT PERMITTED UNDER APPLICABLE LAW, GRADLE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE THOUSAND ($1,000.00) DOLLARS. CUSTOMER ACKNOWLEDGES THAT THIS AMOUNT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT GRADLE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN ADDITION, GRADLE DISCLAIMS ALL LIABILITY OF ANY KIND OF GRADLE’S SUPPLIERS.

7. TERM AND TERMINATION.
7.1 Term. This Agreement starts on the Agreement Effective Date and, unless terminated as provided for in this Section 7, will continue in effect during the Evaluation Term. This Agreement will automatically terminate without the requirement of notice at the end of the Evaluation Term, unless Gradle agree to issue an extension to the license, in which case the Evaluation Term will be deemed extended to last as long as Gradle the license extension provide.
7.2 Termination. Either party may terminate this agreement without cause upon 5 days’ prior written notice.
7.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease to exist.
7.4 Survival. Sections 1 (“Definitions”), 3 (“Restrictions on Use”), 5 (“Disclaimers”), 6 (“Limitation of Liability”), 7.3 (“Effects of Termination”), 7.4 (“Survival”), 8 (“Confidentiality”), and 9 (“General”) will survive expiration or termination of this Agreement for any reason.
8. CONFIDENTIALITY. For the purposes of this Agreement, the Agreement, Gradle Pricing Information, the Service and Documentation, and any copies of them, the results of any performance, functional or other evaluation of the Service, shall be deemed Confidential Information of Gradle. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not will knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.
9. GENERAL.
9.1 Assignment. Customer may not assign or transfer this Agreement (or Customer’s rights hereunder), by operation of law or otherwise, without Gradle’s prior written approval. Any attempted assignment in violation of the foregoing will be null and void.
9.2 Governing Law. This Agreement will be governed by California law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in San Francisco County, California; each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT.
9.3 Remedies. Customer acknowledges that the Service contains Gradle’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Gradle for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
9.4 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.5 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Gradle as a result of this Agreement.
9.6 Waiver. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing. No modification hereof will be effective unless in writing and signed by both parties.
9.7 Force Majeure. Each party’s obligations will be suspended to the extent and for the period of time that such party is hindered or prevented from complying therewith because of labor disturbances (including strikes and lockouts), acts of God, fires, storms, water, unreasonable delays in transportation, governmental action or any other cause reasonably beyond either party’s control. The party who has been so affected will promptly give notice to the other party and will use commercially reasonable efforts to resume performance as soon as possible.
9.8 Compliance with Laws. Each party will comply with all federal, state, and local laws applicable to the Service and their use, this Agreement, and the conduct of its business. In no event will Gradle be responsible for providing, implementing, configuring, or coding the Software in a manner that complies with any laws or regulatory requirements that apply to Customer’s business or industry.
9.9 Entire Agreement. This Agreement, including any and all exhibits and other documents attached hereto or referred to herein (which are incorporated herein by this reference), comprises the entire agreement between Customer and Gradle and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Any preprinted terms on any Customer ordering documents will have no effect on the terms of this Agreement and are hereby rejected.
BY CLICKING THE “AGREE” BUTTON OR, IF YOU HAVE ALREADY CLICKED THE “AGREE” BUTTON, BY CONTINUING TO ACCESS OR USE THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT (a) YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, (b) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (c) YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE BINDING AND ENFORCEABLE.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.