Develocity Software Agreement 20200831

Effective starting: August 31, 2020

This Develocity Agreement (the “Agreement”) is between you and Gradle Inc., a Delaware corporation with its principal place of business at 2261 Market Street #4081, San Francisco, CA 94114 (“Gradle”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. 

By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using Develocity, you indicate your assent to be bound by this Agreement.

1. Definitions. As used in this Agreement:

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

“Agreement” refers, collectively, to all the terms, conditions, notices contained or referenced in this document.

“Agreement 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 the Software.

“Documentation” means the end user manuals and any online help files provided to Customer along with the Software. Documentation is considered part of the Software.

“Fees” means the fees customer required to pay Gradle to use the Software during the applicable License Term, as such fees are reflected on each applicable Order Form.

“No Charge Products” means products that Gradle may provide Customer at no charge for an agreed period of time so that Customer may evaluate such products prior to purchase.

The “Order Form” is a written or electronic form that we’ll give you to order Software (or that we’ll use to order Software on your behalf, once we’ve gotten your authorization). Upon execution by the parties (or, in the case of an electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.

“Seats” mean the number of User accounts for the Software that you are authorized to create. The number of Seats is specified in the applicable Order Form. Only one User can use a Seat at a time. Multiple Users aren’t allowed to use the same Seat.

“Software” The Develocity downloadable software product and the Documentation.

An “Update” is a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix, generally indicated by a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.x.y); or it may be an enhancement, new feature, or new functionality, generally indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x).

A “User” is defined as a person who interacts with or directs the Software in the performance of its functions and/or contributing code to a source repository that has a Gradle and/or Maven build that is connected with Develocity to collect build data, to use the Develocity build cache or to use the Develocity distributed testing agents.

Other capitalized terms used in this Agreement shall have the meanings set forth herein.

2. Account registration. You may need to register for an Gradle account in order to place orders or access or receive the Software. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.

3. Order.

3.1 Directly with Gradle. Gradle’s Software ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for the Software, which may include: (a) number and type of Seats (as defined below), (b) Throughput. The term “Order” also includes any applicable Software or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.

3.2 Reseller Orders. This Agreement applies whether you purchase our Software directly from Gradle or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Gradle’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.

3.3 Seats. Only one User can use a Seat at a time. Multiple Users aren’t allowed to use the same Seat, and only one human being can be associated with a particular User account. If you want to swap out, delete, or suspend a User, you can do that, and then assign a new User to the open Seat. You may increase the number of seats permitted to access your instance of the Product by placing a new Order. You will be charged the same amount on a per-Seat basis for the then-current initial or Renewal Term, prorated for the remainder of the the-current Initial or Renewal Term. When the time comes to renew the Seats for another Term, Gradle will invoice for all of customer Seats at once, at the then-current price (Gradle reserve the right to change prices at any time, but the new prices won’t affect you until it’s time to renew the license for another year). You agree that any orders that will be make (or that you authorize Gradle to make on customer behalf) for additional Seats during the term of this Agreement will be governed by this Agreement. 

3.4 Users. Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting solely for your benefit or solely on your behalf. You are responsible for compliance with this Agreement by all Users. All use of Software by you and your Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. 

4. Software Terms.

4.1 Your License Rights. Subject to the terms and conditions of this Agreement, Gradle grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The term of each Software license (“License Term”) will be specified in your Order.  The Software requires a license key in order to operate, which will be delivered as described in Section 5 (Delivery).

4.2 Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). 

4.3 Third Party Code. Gradle’s Software includes code and libraries licensed to Gradle by third parties, including software whose licenses require Gradle to make the source code for those components available. The source code for such components will be provided upon request. Before a new component is added to Gradle’s Software, Gradle completes a process for ensuring such component is under terms that Gradle can safely distribute and Customer can use. Gradle warrants that the Software does not and will not include any software distributed under a license that would: (a) affect Customer’s proprietary rights in its product(s) or data, (b) subject Customer to any obligation to disclose, distribute or license its own product(s) in source code form or otherwise make the product(s) available for use by others or for the purpose of creating derivative works, or (c) add or place any more onerous restrictions on Customer’s use of the Software than is included in this Agreement.

5. Delivery. We will deliver the applicable license keys to the email addresses specified in your Order when we have received payment of the applicable fees or the order form is signed. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Gradle has no further delivery obligation with respect to the Software after delivery of the license keys.

6. Verifications. At our request, you agree to provide a signed certification that you are using the Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Gradle at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.

7. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Software to a third party, (b) use the Software for the benefit of any third party, (c) incorporate the Software into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in the Software, or (g) publicly disseminate information regarding the performance of the Software.

8. Financial Terms.  

8.1 Payments. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 11 (Indemnification), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of the Software beyond the current License Term or Subscription Term or any Software upgrades or feature enhancements. If you purchase the Software through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use the Software if we do not receive our corresponding payment from the Reseller, or you are in breach of this Agreement.

8.2 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Gradle, you must pay to Gradle the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Gradle any such exemption information, and Gradle will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available. 

9. No-Charge Products. No-Charge Products are provided “as is” without warranty of any kind.  Gradle may provide support services for No-Charge Products but is not obligated to do so.  You bear the sole risk of using Gradle’s No-Charge Products. Gradle’s entire liability with regard to No-Charge Products is limited to $ 1,000_for all damages regardless of the claim.  This Section supersedes all other sections of the Agreement with regard to No-Charge Products.

10. Limited Warranties.  

10.1 Limited Warranties. We offer you (and only you) the following limited warranties: (i) that any unmodified Software, at the time we make it available to you for download, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm your software, hardware, computer system, or network); (ii) that, for ninety (90) days from the date the Software is made available for download  the unmodified Software will substantially conform to its Documentation. We don’t warrant that your use of the Software will be uninterrupted, or that the operation of the Software will be error-free. These warranties won’t apply if you modify the Software, or if you use the Software in any way that isn’t expressly permitted by this Agreement and the Documentation. Our only obligation, and your only remedy, for any breach of these limited warranties will be, at our option and expense, to either (i) repair the Software; (ii) replace the Software; or (iii) terminate this Agreement with respect to the defective Software, and refund the Fees you’ve paid for the defective Software during the then-current License Term once you’ve returned it to us (or destroyed it).

10.2 Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH RESPECT TO THE SOFTWARE, SERVICES AND OUR TECHNICAL SUPPORT. WE DON’T MAKE ANY OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

11. Limitation of Liability.  ​

11.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE SOFTWARE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

11.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU’VE ACTUALLY PAID US DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. 

11.3 Basis of Bargain. You understand and agree that we’ve set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between the parties.

12. Indemnification.

12.1 Our Indemnification Obligation. We will defend or settle, at our option and expense, any third-party claim brought against you to the extent that it’s based on an allegation that your use or possession of the Software as permitted under this Agreement infringes a United States or European Union copyright or misappropriates a trade secret of any third party (each, a “Claim”), and, subject to Section 11, we’ll pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify us in writing of any such Claim as soon as reasonably practicable and allow us to control the defense, and reasonably cooperate with us in the defense of, any such Claim and related settlement negotiations.

12.2 Exclusions. You understand that we’ll have no obligation to indemnify you for any Claim that’s based on (i) the modification of the Software, unless we were the ones who made the modifications; (ii) your use of the Software other than as authorized by this Agreement and the Documentation; (iii) your failure to use updated or modified Software that we make available to you that would have helped avoid or mitigate the Claim; (iv) your failure to stop using the Software after receiving written notice to do so from us in order to avoid further infringement or misappropriation; or (v) the combination, operation or use of the Software with equipment, devices, software, systems, or data that we didn’t supply (subparts (i)-(v) may be referred to collectively as “Indemnity Exclusions”).

12.3 Right to Ameliorate Damages. If your use of the Software is, or in our reasonable opinion is likely to be, subject to a Claim under Section 12.1, we may, at our sole option and at no charge to you (and in addition to our indemnity obligation to you in Section 12.1): (i) procure for you the right to continue using the Software; (ii) replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or (iii) if options (i) and (ii) above are not commercially practicable in our reasonable estimation, we can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Software) and refund the Fees that you paid us for the then-current License Term.

12.4 Sole Remedy. THIS SECTION 12 SETS FORTH OUR SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. 

13. Term and Termination.

13.1 Term. This Agreement starts on the Agreement Effective Date and will continue in effect for the License Term (the “Initial Term”), at which time, so long as you choose to renew your Software license for additional License Term(s) (each, a “Renewal Term”), this Agreement will continue in effect for additional License Terms as set forth in the applicable Order Form unless or until this Agreement is either terminated by a party or expires in accordance with this Section 9. We’ll notify you at least sixty (60) days before the end of the Initial Term and each Renewal Term that it’s time for you to renew your Software license. We’ll generate a new Order Form for renewal, that will allow your continued use of the Software for another License Term. 

13.2. Termination for Convenience. Automatic Expiration. Either of us can terminate this Agreement for our convenience at the end of the Initial Term and each Renewal Term by providing written notice to the other at least thirty (30) days before the end of the Initial Term and each Renewal Term. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial Term and each Renewal Term, you decide not to pay the Fees required to renew your Seats for an additional License Term.

13.3 Termination for Breach. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Gradle, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software license, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

13.4 Effect of Termination. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access the Software, or any information or materials that we make available to you under this Agreement, including Gradle Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: 6 (Verifications), 7 (Restrictions), 8 (Financial Terms), 10 (Limited Warranty), 11 (Limitation of Liability), 13 (Term and Termination), 14 (Confidentiality), 17 (Export Restrictions), 18 (Governing Law) and 19 (General). 

14. Confidentiality.  

14.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means, and including things like documentation, computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of this Agreement, except as expressly set forth in Section 14.2 below, the source code of our Software will be deemed to be Gradle’s Confidential Information, regardless of whether it is marked as such.

14.2 Restrictions on Use and Disclosure. Neither of us will use the other party’s Confidential Information, except as permitted under this Agreement. Each of us agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as we use for its own information of a similar nature, but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”) (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 14, and (iii) who are informed of the nondisclosure obligations imposed by this Section 14. Each of us will be responsible for all acts and omissions of our Representatives. The foregoing obligations won’t restrict either of us from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice, if legally permitted, to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 14 will survive the termination or expiration of this Agreement.

14.3 Exclusions. The restrictions set forth in Section 14.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party’s Confidential Information.

15. Support and Maintenance. Gradle will provide the support and maintenance services for the Software described in the Develocity Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Develocity Support Policy (see below). Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements that are generally provided to other subscribers of the Support and Maintenance Services, or modifications to the Software that we make generally commercially available.

16. Ownership and Feedback. The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Gradle and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Software, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Gradle, including without limitation as they may incorporate Feedback (“Gradle Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Gradle, including sharing your modifications in the course of receiving Support and Maintenance (“Feedback”). Gradle may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Gradle’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise. 

17. Export Restrictions. The Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Software. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to 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 represent and warrant that (i) 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 and (ii) that none of your data is controlled under the US International Traffic in Arms Regulations. The Software is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

18. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under, related to or connected with this Agreement will be brought exclusively in the federal (if they have jurisdiction) or state courts located in San Francisco, California and the parties irrevocably consent to the personal jurisdiction and venue there.

19. General.

19.1 Assignment.  Customers aren’t allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void.  We can assign this Agreement in its entirety, upon notice to you but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.

19.2 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can’t be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.

19.3 Notices.  Any notice, request, demand or other communication required or permitted under this Agreement should be in writing (e-mail counts), should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth on the Invoice, unless we notify each other that those addresses have changed.

19.4 Waiver. A party’s obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

19.5 Force Majeure. Gradle will be excused from performing under this Agreement to the extent that we’re unable to perform due extraordinary causes beyond our reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.

19.6 Independent Contractors. The parties are independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the parties, and neither of the parties can bind the other contractually.

19.7 U.S. Government End Users.  ​No technical data or computer software is developed under this Agreement. The Software and Documentation have been developed solely with private funds, and are considered “Commercial Computer Software” and “Commercial Computer Software Documentation” as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and are licensed to the to the U.S. Government end user as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Software or Documentation by the U.S. Government or its contractors is subject to the restrictions set forth in this Agreement.

19.8 Compliance with Laws.  Each party will comply with all federal, state, and local laws applicable to the Licensed Software 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, including without limitation, the Health Insurance Portability and Accountability Act (HIPAA) (collectively “Customer Specific Laws”).  Customer agrees that it will comply with all such Customer Specific Laws and, regardless of anything to the contrary, in no event will Gradle, its Affiliates or related entities be held liable for any claim or action arising from or related to Customer’s failure to comply with any Customer Specific Laws.

19.9 Amendments; Entire Agreement.  Amendments; Entire Agreement. No modification, change, or amendment of this Agreement will be binding upon the parties, unless we both agree to the change in a writing signed by each of our authorized representatives. This Agreement, including each Order Form and SOW, constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.

19.10 No Other Terms. This Agreement is the only agreement between us, and the terms of any purchase order, written terms or conditions, or other document that you submit to us that contain terms that are different from, in conflict with, or in addition to the terms of this Agreement or any Order Form are hereby rejected by Gradle, and will be void and of no effect.

Develocity Support Policy

This Develocity Support Policy is attached to and incorporated in that certain Develocity Software Agreement (the “Agreement”). Unless otherwise defined, the capitalized terms shall have the same meaning as such terms in the Agreement.

The support is provided for the current major release.

Software Maintenance and Technical Support Response Times for Issues: Licensor will use reasonable efforts to meet the guaranteed response times listed in the table herein:

Hours of Operation	12 Hours/Day, 6AM PT – 6PM P 5 Days/Week, excluding weekends and national U.S. holidays
Support Language	English
Support Access Method	Web/Email at: Zendesk Support platform
Support Response Method	Web/Email at: Zendesk Support platform
Number of Support Requests	Unlimited
Level 1 – Urgent Level 2 – High Level 3 and 4	Up to 4 hour response time Up to 4 hour response time Up to close of next business day

SERVICE LEVEL COMMITMENTS

Licensor will expend reasonable efforts to provide an Error Correction designed to solve or bypass a reported Error. Customer, in its reasonable discretion, shall determine the priority level of Errors. Licensor uses the following protocols (all times shown reflect regular business hours):

1. “Error” means a failure of the Software to conform to the specifications therefore as set forth in the Documentation resulting in the inability to Use the Software or a considerable restriction in Use of the Software. Errors are classed Severity 1, 2, 3 or 4, as follows:

Severity 1: Critical Business Impact – All Productive Activity Stopped

Customer is unable to use Licensor Software in a material fashion or reasonably continue work using the Software in a production environment.

Severity 2: Major Business Impact ‐ Major Feature Failure or Performance Degradation

Critical Licensor Software components are not working properly while other areas of the Software are not impacted. Behavior has created a significant negative impact on Customer’s productivity or Customer’s service level. Also includes installation errors.

Severity 3: Minor Business Impact ‐ Minor Feature Failure

Licensor Software components not working properly, however, an alternative solution is available.

•       A non‐essential Licensor Software feature is unavailable with no alternative solution.
•       Licensor Software behavior yields minimal loss of operational functionality or implementation resources.

Severity 4: Minimal Business Impact – General Questions

                       ∙  Licensor Software Information Request

                       ∙  Licensor Software Enhancement

                       ∙  Licensor Software Documentation Clarification

1. “Error Correction” means either a Software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on the end user and shall include all upgrades, updates, fixes, workarounds, and other modifications to the Software or to the Third‐Party Software, other than Enhancements, which are made in order to correct Errors in the Software as defined herein.

A “Major Release” or “Version” is defined by the first and second numbers separated by the first decimal point in the release number sequence (i.e. 2017.1). An Update or Point Release is the release number after the right‐most decimal point in the release number sequence (i.e. 2017.1.1). Major Releases do not include modules or add‐on products that the Customer has not licensed from Licensor.

The Service Level Objectives (“SLOs”) stated below are targets and do not include or account for time waiting for further information from the Customer or other delays outside of Licensor’s reasonable control. Time periods refer to operating hours from when the case is received or to business days. The SLOs assume that the Customer has fulfilled all responsibilities described in this document and Licensor’s Technical Support personnel have received all the requested technical information reasonably required to resolve the issue. 

Service Level Objective (SLO) Definitions: 

Initial Response

Initial response is defined as contact by either email or phone by a Technical Support Engineer to gather additional information about a case, collect diagnostics, suggest workarounds, obtain reproduction data and/or gather configuration information.

Update Frequency

Update frequency is the frequency with which Licensor Technical Support provides case status to clients. Periodicity may be extended by mutual agreement between the Customer and Licensor Technical Support. 

Workaround

A Workaround provides relief from the non‐conforming Software behavior. Relief may take the form of an alternate usage, a system configuration change, a patch and/or design approach, or information in the case of an information request.

Maintenance Release

Maintenance releases are Software releases containing corrections for non‐conforming Software behavior. Releases may or may not contain new functionality.

General Availability (GA) Release

Enhancement releases contain both bug fixes and new functionality. Licensor determines which enhancement suggestions to fulfill in its sole discretion.