This Evaluation Agreement is between CloudBees, Inc. (“CloudBees”) and the user of CloudBees Jenkins Team (“Products”) and accompanying Documentation that accepts the terms of this Agreement (“Customer”).
1. GRANT OF LICENSE.
1.1 License. Subject to the terms of this Agreement, CloudBees grants to Customer a personal, non-exclusive, non-transferable, non-sublicensable, limited, internal license to install the Products and Documentation on computers owned or leased by Customer for a time-limited period, determined solely by CloudBees, from the Effective Date (“Evaluation Period”), solely to evaluate the features, functionality and performance of the Products and Documentation, but only in accordance with (i) the Documentation and (ii) this Agreement. At the end of the Evaluation Period, the Products may cease to function.
1.2 License Conditions. Except as otherwise expressly permitted in this Agreement, Customer shall not, on its own or through any parent, subsidiary, Affiliate, agent or other third party: (i) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Products or the Documentation to a third party; (ii) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage others to do so; (iii) allow access or permit use of the Products by any users other than authorized users; (iv) create, develop, license, acquire, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products, any additional licensing terms provided by CloudBees via Documentation, notification, and/or policy change posted at http://go.cloudbees.com, or the terms of this Agreement; (v) modify or create derivative works based upon the Products; (vi) disclose the results of any benchmark test of the Products to any third party without CloudBees’ prior written approval; or (vii) change any proprietary rights notices which appear in the Products or Documentation.
1.3 Support. CloudBees does not provide any support or subscription services for the Products under this Agreement. Customer has no rights to any updates, upgrades or extensions or enhancements to the Products developed by CloudBees, unless it separately purchases CloudBees subscription services.
2. OWNERSHIP. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in this Agreement, CloudBees has and will retain all rights, title and interest in and to the Products and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works. Customer acknowledges that it is obtaining only a limited license right to the Products and Documentation and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
3. WARRANTY DISCLAIMER. THE PRODUCTS AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, QUIET ENJOYMENT, ACCURACY OF DATA, SYSTEM INTEGRATION, COURSE OF PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. CLOUDBEES DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE PRODUCTS OR DOCUMENTATION, OR ANY MATERIALS PROVIDED TO CUSTOMER BY CLOUDBEES, WILL BE UNINTERRUPTED OR ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE PRODUCTS AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS. CUSTOMER ACKNOWLEDGES THAT CLOUDBEES HAS NO RESPONSIBILITY FOR ANY HARDWARE ON WHICH CUSTOMER INSTALLS OR EVALUATES THE PRODUCTS.
4. LIMITATION OF LIABILITY. IN NO EVENT WILL CLOUDBEES OR ITS LICENSORS BE LIABLE FOR ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF CLOUDBEES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDBEES’ AND ITS LICENSORS’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED FIFTY DOLLARS (US$50.00). THE ALLOCATIONS OF LIABILITY IN THIS SECTION 4 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF CLOUDBEES FOR THE PRODUCTS AND DOCUMENTATION PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
5. TERM AND TERMINATION. The term of this Agreement will begin on the Effective Date and end on the last day of the Evaluation. Unless stated otherwise on the specific trial registration form completed to get access to your free trial License, the default term duration is 14 days. This Agreement may be terminated at any time by either party upon written notice to the other party. Upon termination or expiration of this Agreement, Customer will un-install and destroy the Products and Documentation, or return the Products and Documentation to CloudBees and certify to CloudBees in writing that all copies or partial copies thereof have been deleted from every computer library and storage device under Customer’s control, are no longer in use by or on behalf of Customer, and have been either returned to CloudBees or destroyed. Termination will not affect any claim, liability or right arising prior to termination. All rights and obligations granted under Sections 1.2 and 2-8 of this Agreement will survive the expiration or termination of this Agreement.
6. CONFIDENTIALITY. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the Receiving Party shall (i) hold the Confidential Information of the Disclosing Party in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall take all reasonable precautions to ensure that such employees and contractors comply with the provisions of this Section. Each party shall be responsible for all violations of this Agreement by its employees and contractors. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party reasonable written notice. Notwithstanding anything to the contrary, Customer acknowledges and agrees that CloudBees, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Services and performed under this Agreement.
7. GENERAL .
7.1 Independent Parties. Neither Customer nor CloudBees is a legal representative, partner or agent of the other.
7.2 Entirety. This Agreement represents the entire agreement of the parties with regard to the Products, Documentation, and Confidential Information and supersedes all other agreements related to this subject matter, except for a nondisclosure agreement entered into by the parties. Delivery of an executed counterpart of this Agreement by facsimile or any other reliable means shall be deemed to be as effective for all purposes as delivery of the manually executed counterpart. This Agreement may not be amended except in writing signed by both parties. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Products and Documentation to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
7.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
7.4 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts located in New York, New York, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
7.5 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department.
“Affiliate” means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
“Confidential Information” means any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by one party to the other party under this Agreement in connection with the transactions contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements.
“Disclosing Party” means the party to this Agreement disclosing Confidential Information to the other party.
“Documentation” means the electronic user and administrative manuals contained within the Products.
“Products” means the CloudBees software products made available to Customer by CloudBees under this Agreement.
“Receiving Party” means the party to this Agreement receiving Confidential Information from the other party.