Acceptance of Terms
CloudBees, Inc. (referred to here as “CloudBees”) provides its Service (as defined below) to You, subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service, You acknowledge that you have read, understood, and agree to be bound by this TOS. If You are entering into this TOS on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these TOS, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these TOS, You must not accept these TOS and may not use the Service or the Site.
CloudBees may change this TOS from time to time without prior notice. The revised terms and conditions will become effective upon posting and if You use the Service after that date, CloudBees will treat Your use as acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to You, Your only remedy is to stop accessing and using the Service.
Description of Service
The “Service” includes CloudBees Jenkins Health Advisor by CloudBees, that (a) scans Jenkins instances connected to the service, collects and analyzes system performance data, and provides proactive feedback to help ensure uptime, performance and productivity, and (b) all software, data, text, images, sounds, video, and content made available through the Services, collectively referred to as the “Content.” Any new features added to or augmenting the Service are also subject to this TOS.
General Conditions / Access and Use of the Service
Subject to the terms and conditions of this TOS, You may access and use the Service only for Your internal business purposes as contemplated by this TOS. You shall not nor allow any third party to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this TOS; (b) use the Service to process data on behalf of any third party, (c) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (d) modify, decompile, disassemble or reverse engineer the Service for any purpose whatsoever; (e) copy, frame or mirror any part or content of the Service; (f) access the Service in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Service, or (g) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, or store or transmit any virus or other malicious code through the Service. Without limiting the generality of the foregoing, the Service is not designed to be compliant with, and You are solely responsible for using the Service in compliance with, any applicable data privacy or personally identifiable information (for example, the Health Insurance Portability and Accountability Act of 1996, and HITECH).
Subject only to the limited right to access and use the Service expressly granted to You under this TOS, all right, title and interest in and to the Service and its components, and all derivative works thereof, will remain with and belong exclusively to CloudBees. You shall not modify, adapt or hack the Service to falsely imply any sponsorship or association with CloudBees, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all information, data, text, messages or other materials that are collected by or otherwise transmitted by or to the Service. You agree that you will not provide any Personally Identifiable Information, Protected Health Information, or other information covered or restricted by US or international data privacy laws, and you hereby waive all claims against CloudBees under any US or international data privacy laws.
You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as Your plan allows.
CloudBees reserves the right to access any or all of Your accounts in order to respond to Your requests for technical support. CloudBees shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your data. CloudBees will not disclose Your data except if compelled by law or if permitted by You.
You understand that the technical processing and transmission of the Service, including Your content, may be transferred unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to CloudBees’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. CloudBees will use reasonable efforts to publish on the Site or notify You of any planned downtime of the Service.
The failure of CloudBees to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between You and CloudBees, even though it is electronic and is not physically signed by You and CloudBees, and it governs Your use of the Service and takes the place of any prior agreements between You and CloudBees; provided that this TOS will be superseded by any signed agreement between CloudBees and You specifically concerning your use of the Service.
CloudBees®, CloudBees’ various logos used or displayed on the Service are trademarks of CloudBees and You may only use these trademarks or logos for promotional purposes to identify Yourself as a customer or user of the CloudBees products and services, provided You do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings. You will comply with any standards for use that CloudBees may post on the Site concerning these trademarks and logos. Any goodwill accruing from the use of these trademarks and logos shall inure to CloudBees.
Cancellation and Termination
You are responsible for properly canceling Your account by using the online facilities provided by CloudBees on the CloudBees website. CloudBees will then contact Your account administrator and require a confirmation by replying to CloudBees’ email. There are no other means of canceling Your account. You will lose access to all of Your content upon cancelation, and CloudBees will delete Your content in its normal course of business operations. This information cannot be recovered once Your account is canceled. If You cancel the Service before the end of Your current paid-up subscription period, Your cancelation will take effect immediately and You will not be charged again. You will only be charged for the existing usage fees of Your account, if any.
CloudBees reserves the right to (a) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (b) refuse any and all current and future use of the Service, suspend or terminate Your account (or any part thereof) or use of the Service and remove and discard any of Your content in the Service, for any reason, including, if CloudBees believes that You have violated this TOS. CloudBees will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of Service may be referred to appropriate law enforcement authorities. CloudBees shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE CONTENT, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW, AND CLOUDBEES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT CLOUDBEES DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM CLOUDBEES OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL CLOUDBEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, CLOUDBEES SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE GREATER OF THE MONTHLY SERVICE FEE PAID OR PAYABLE BY YOU FOR THE ONE MONTH PRECEDING THE TIME OF ANY CLAIM FOR MONETARY DAMAGES OR ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT, AND THESE PROVISIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
Some U.S. states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, CLOUDBEES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You will indemnify and hold harmless CloudBees, and its directors, officers, employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party in connection with your use of the Service, your violation of this TOS, Your violation of any third party right, including any intellectual property right, or any claim that use of Your content caused damage to a third party. This indemnity obligation will survive the termination or expiration of Your account and this TOS.
CloudBees may assign or transfer this TOS, in whole or in part, without restriction.
Compliance with Laws
You are responsible for complying with any applicable laws, rules, or regulations governing Your use of the Service, including without limitation, the export of the Service or any of its components. You shall not and shall not allow any third party to use the Service or any of its components: (a) in (or by a national or resident of) any embargoed or terrorist-supporting country; (b) by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) in any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You further warrant that You are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Service is also restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
This Agreement shall be governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the New York state and United States federal courts located in New York, New York, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.
Relationship of Parties
CloudBees and You are independent contractors and this TOS will not establish any relationship of partnership, joint venture, employment, franchise, or agency between You and CloudBees.
The provisions of this TOS will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this TOS is declared to be unenforceable for any reason, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties.
If the software being used in the Service is being used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government’s rights in such software and any documentation, including its rights to use, modify, reproduce, release, perform, display, or disclose software or any documentation, shall be subject in all respects to the license rights and restrictions provided in this TOS.