Gradle Open Source Program Agreement

This Gradle Open Source Program Agreement (the “Agreement”) is between Gradle, Inc., a Delaware corporation with its principal place of business at 2261 Market Street #4081, San Francisco, CA 94114 (“Gradle”) and the open source project on behalf of which this Agreement is executed or entered into (“Customer”). This Agreement is entered into on the earlier of, (a) Customer clicking “Agree” or “Yes” to the terms of this Agreement to gain initial access to, or use of, the Software (as defined below) or (b) Customer being given access to the Software pursuant to the requirements of this Agreement (“Effective Date”). Customer and Gradle may be referred to in this Agreement collectively as “Parties” or each individually as a “Party”. 

If you are executing this Agreement on behalf of Customer, you represent that you have the authority to bind Customer to the terms of this Agreement and accept notice under this Agreement on behalf of Customer.

The Parties hereby agree as follows:

1. Purpose. Customer desires to use the Develocity software (formerly known as Gradle Enterprise) (the “Software”) to improve developer productivity in connection with the development of open source projects hosted by Customer (each a “Open Source Project” and collectively the “Open Source Projects”), and Gradle desires to sponsor Customer’s use of the Software by providing Customer with a free instance of Devlocity to be used in the development of the Open Source Projects (the “Purpose”). For purposes of this Agreement, “On-Prem Software” shall refer to the instance of Software hosted on Customer’s own premises and the term “Hosted Software” shall refer to the instance hosted by Gradle.

2. License Grant. Subject to the terms of this Agreement, Gradle grants Customer a non-exclusive, non-sublicensable and non-transferable license to either install the On-Prem Software or internally access the Hosted Software and use the Software and all written materials, binders, training disks, and other materials supplied by Gradle related to the Software (the “Software Documentation”) solely in connection with development of the Open Source Project during the Term (the “License Grant”).  Customer shall ensure that all of its users and contributors to the Open Source Projects who have access to the Software (“Customer Users”) are aware of and agree to be bound by the terms and conditions of this Agreement before using the Software, and Customer shall promptly report to Gradle in writing any actual or suspected non-compliance with this Agreement by any Customer Users.

3. Access Keys. Gradle shall provide Customer and/or Customer Users with and will utilize credentials in the form of access keys, tokens, and/or account login credentials (collectively, “Access Keys”) to authenticate Customer’s access to the Software for the Purpose, as described in Section 1 above. Customer is solely responsible for maintaining the security and confidentiality of the Access Keys issued to Customer and for all activities using the Access Keys issued to Customer. Customer may not (i) modify or circumvent the Access Keys, (ii) distribute, sell, transfer, or disclose Access Keys to any third party without prior consent from Gradle, or (iii) use Access Keys for any purpose or in any manner other than as described herein. The Access Keys are Gradle’s proprietary and confidential information and are subject to the Confidential Information provisions set for in Section 13 of this Agreement. 

4. Third Party Services. If Customer is using an instance of the Hosted Software, Customer acknowledges and agrees that Gradle uses a third-party hosting provider to provide the Software and services (“Third Party Services”) and Gradle shall not be liable for the operation of any Third Party Services nor any service interruptions caused by or due to the unavailability of the service by the Third Party Services provider or Gradle to the extent such availability and operation is dependent upon the Third Party Services.  Gradle does not make any representations or warranties with respect to Third Party Services or third party hosting providers.    Gradle reserves the right to change hosting providers at any time.  Customer agrees that it shall abide by the acceptable use terms of the third-party hosting provider. 

5. Ownership. Gradle and its licensors hold and retain all rights, title and interest, including all intellectual property rights, in and to the Software, their “look and feel” and all related underlying technology, including modifications, or derivative works of the foregoing, created by or for Gradle, including without limitation any Feedback (as defined below) or the incorporation of any Feedback into the Software, and any Usage Data (as defined below).

6. Restrictions on Use. Customer shall not, and shall not permit any third party, including the Customer Users, to directly or indirectly: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Software to a third party, (i) except that Customer shall publicly display or make available all published build insights, data analytics, and performance acceleration artifacts produced from builds of Customer’s Open Source Projects (clause (a)(i), the “Exception”), (b) use the Software for the benefit of any third party, except with respect to the Exception, (c) incorporate the Software into a product, project or service Customer provides to a third party, (d) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit Customer’s 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 to the extent such restrictions are prohibited by applicable law, (f) remove or obscure any proprietary or other notices contained in the Software, (g) publicly disseminate information regarding the performance of the Software, except with respect to the Exception, to the extent that public dissemination of the Exception itself provides any information regarding performance of the Software, and except as otherwise requested by Gradle or agreed between the parties, (h) combine the Software with any other software that requires as a condition of use, modification or distribution requires the Software to be disclosed or distributed in source code form, or freely licensed for the making of derivative works, (i) use the Software for the design, or development of nuclear, chemical or biological weapons or missile technology without the prior permission of the United States government, (j) use  in a manner not compliant with applicable laws or regulations that include, but are not limited to:  data privacy regulations, transmission of personal data or export control laws; or (k) in any purpose other than expressly permitted by this Agreement. Customer agrees that it shall at all times (i) publicly display or make available all build insights, data analytics, and performance acceleration artifacts produced from all published builds of Customer’s open source projects and (ii) provide or make the Develocity instance available at the ‘develocity’ sub-domain of the Open Source Project’s main domain URL.

7. Customer Data.  “Customer Data” means data that Customer submits, posts or otherwise uploads to the Software during the Term.  Customer is solely responsible for the accuracy, quality, legality and the right to share the Customer Data.  Customer shall not share Customer Data that is legally prohibited from sharing.  Customer shall not use the Software or services to process sensitive information, or credit card data.  Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of using the Software.  Customer grants Gradle a non-exclusive, royalty-free, worldwide license to process, use, copy, store, transmit, publicly display,  or reproduce the Customer Data for training, marketing and advertising purposes, and to provide the Software or any associated services. Gradle may monitor Customer’s use of the Software and collect or compile usage data (“Usage Data”).  All right and title to the Usage Data shall belong to Gradle.  Gradle may use the Usage Data and any Customer Data for promotional or demonstrative purposes or to develop or enhance services or features of the Software without restriction.

8. Terms of Use. Customer agrees that any submissions, content or contributions used with the Software by Customer and its users or contributors shall be subject to and comply with Gradle’s Terms of Use, the latest version of which is available at https://gradle.com/legal/terms-of-use/ (the “Terms of Use”). Customer agrees to provide a link to the Terms of Use on any page or anywhere Customer publicly displays any build insights, data analytics, and performance acceleration artifacts produced from builds of Customer’s Open Source Projects, and Customer shall ensure that all Customer Users are aware of and agree to be bound by the Terms of Use before using or contributing any source code to the Software.

9. Customer Responsibilities. Customer is responsible for all of Customer’s activity in connection with the Software, including but not limited to uploading Customer Data (as defined below) onto the Software.  Customer (a) shall use the Software in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Software in a manner that infringes, misappropriates or otherwise violates any third party intellectual property, contractual or other proprietary rights.  Customer will not directly or indirectly export, re-export or otherwise deliver the Software in violation of any export laws.  Customer represents that it is not prohibited from receiving the Software pursuant to this Agreement under applicable laws, including export laws.

10. Term and Termination. The license granted herewith is for an initial period of one (1) year (the “Initial Term”), unless earlier terminated.  Following expiration of the Initial Term, this  Agreement shall renew for additional successive terms equal to the Initial Term (each such term, a “Term”), unless earlier or otherwise terminated by the Parties in accordance with the terms of this Agreement. Gradle may terminate this Agreement at any time for any reason or for no reason upon seven (7) days prior written notice. Upon termination of this Agreement or expiration of the Term, if the parties agree not to renew the Term,  then (i) if the Software is hosted by Gradle, Gradle shall promptly take Customer’s server offline and remove or destroy any Customer Data, or, (ii) if Customer hosts the Software on its own server, Customer shall uninstall the Software and delete it from its systems.

11. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF  (1) MERCHANTABILITY; (2) FITNESS FOR A PARTICULAR PURPOSE; (3) EFFORT TO ACHIEVE PURPOSE; (4) QUALITY; (5) ACCURACY; (6) TITLE; (7) NON-INFRINGEMENT; (8) MARKETABILITY; (9) PROFITABILITY; (10) SUITABILITY; (11) THAT THE SERVICE WILL BE UNINTERRUPTED; (12) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  GRADLE DOES NOT WARRANT THAT THE SOFTWARE SHALL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE SHALL BE ERROR FREE OR THAT THE SERVICE WILL NOT BE INTERRUPTED DUE TO THE FAULT OF THE THIRD-PARTY HOSTING PROVIDER OR GRADLE. GRADLE DOES NOT WARRANT THE SOFTWARE DOCUMENTATION. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS AT ALL TIMES WITH THE CUSTOMER. NO OTHER WARRANTIES SHALL APPLY.

12. LIMITATION OF LIABILITY. NEITHER GRADLE NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES OF ANY SORT, EVEN IF GRADLE HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, (a) ANY DAMAGES FOR LOST PROFITS, OR (b) ANY DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA. IN NO EVENT SHALL GRADLE BE LIABLE TO CUSTOMER FOR ANY ACTION OR REMEDY BEYOND THOSE DESCRIBED IN THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, GRADLE’S ENTIRE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT FOR ALL CAUSES OF ACTION SHALL NOT EXCEED $500 (FIVE HUNDRED DOLLARS). IN NO EVENT SHALL GRADLE BE LIABLE TO CUSTOMER FOR ANY ACTION OR REMEDY BEYOND THOSE DESCRIBED IN THIS AGREEMENT.

13. Confidential Information.

13.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means all information that either Customer or Gradle discloses to the other, in writing, orally, or by any other means, and includes but is not limited to: the trade secrets and know-how of the respective Parties, any information marked “Confidential” or “Proprietary”, computer programs, object and source codes, algorithms, documentation, data, business and financial information, development plans, customer lists, pricing information, and, with respect to Gradle, the Software, the Software Documentation and any third-party information that Gradle is obligated to keep confidential. Information need not be marked to be deemed Confidential Information. Confidential Information shall not include 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 from a source other than the disclosing Party; (iii) is approved by the disclosing Party for disclosure in a writing; or (iv) is independently developed without access to or use of the other Party’s Confidential Information. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE BEING PROVIDED, ALONG WITH ANY SOFTWARE DOCUMENTATION AND ACCESS KEYS, IS THE WORK PRODUCT OF GRADLE AND WAS DEVELOPED WITH SIGNIFICANT INVESTMENTS OF TIME AND RESOURCES AND, IT IS AGREED, SHALL BE REGARDED AND PRESERVED AS A TRADE SECRET REQUIRING CONFIDENTIAL HANDLING. 

13.2 Restrictions on Use and Disclosure. Neither Party shall use the other Party’s Confidential Information, except as permitted under this Agreement. Except as otherwise permitted under this Agreement, each of Gradle and the Customer agrees to (i) keep Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information including, without limitation, all precautions the receiving Party employs with respect to its own confidential materials and (ii) not divulge any such Confidential Information or any information derived therefrom to any third person. Either Party may disclose Confidential Information to its employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”) who have a need to know such information and who are informed of the nondisclosure and confidentiality obligations imposed by this Agreement. Each Party to this Agreement shall be responsible for all acts and omissions of each of their Representatives. Upon any termination, cancellation or rescission of this Agreement, a receiving Party shall, at the option of the disclosing Party, surrender and deliver all Confidential Information of the other Party, including all copies thereof, or destroy the Confidential Information and all copies thereof.

14. Feedback. From time to time, Customer may provide Gradle with feedback on the Software (“Feedback”). Feedback is voluntary and Gradle has no obligation to hold it in confidence. Customer grants Gradle worldwide, perpetual, irrevocable license to use the Feedback in any way it sees fit.

15. Trademark License. In consideration of the License Grant, Customer shall permit Gradle to include a promotional badge or other promotional material on Customer’s website which badge or promotional material may include Gradle’s name and/or trademarks (each, a “Mark”).  Subject to the terms and conditions hereof, Gradle hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, royalty free license under Gradle’s rights in the Mark to use, reproduce, distribute and display the Mark solely on Customer’s website in connection with a badge or other promotional material provided by Gradle, subject to Gradle’s prior approval and consent in each instance of use, which approval or consent may be revoked at any time. In order for Gradle to maintain control over the nature and quality of the subject matter on or in connection with which the Mark is used and the form and manner in which the Mark is used, Gradle has the right to examine and approve the nature and quality of all subject matter on or in connection with which the Mark is used.  Gradle may inspect such subject matter from time to time upon reasonable notice to Customer. Customer shall use the Mark only in the form and manner and with appropriate legends as prescribed from time to time by Gradle and shall not use any other trademark or service mark in combination with the Mark without Gradle’s prior written approval. Should Gradle object to Customer’s use of the Mark or quality of the items bearing the Mark at any time, Customer shall cure the objections to Gradle’s satisfaction within thirty (30) days of being notified in writing of such objections by Gradle or will cease any use of the Mark.  If such cure does not timely occur or if the Customer ceases to use the Mark, the license will terminate. Any use of the Mark by Customer shall inure to the benefit of Gradle, and this license does not operate to transfer or convey any rights, title, or interests in the Mark or Mark to Customer except to the extent of the license granted herein. Customer hereby acknowledges Gradle’s ownership of the Mark and the validity of the Mark and the registrations thereof, and Customer hereby agrees that it shall not register or attempt to register any trademark or service mark that includes the Mark. Upon expiration or termination of this Agreement for any reason, Customer shall immediately cease all use of the Mark. THE MARK IS PROVIDED “AS IS”, “WHERE IS”, AND GRADLE MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  Customer agrees that Gradle shall have the right to use Customer’s name and/or trademarks (“Customer Trademarks”) on Gradle’s website or on other platforms for promotional or other purposes.  Any such use of Customer Trademarks  by Gradle shall be in accordance with Customer’s trademark or brand guidelines.

16. Non-Disparagement. Customer covenants that it will not at any time, directly or indirectly, make, publish or communicate, either orally or in writing, to any person or entity or in any public forum any defamatory, false, misleading, injurious or disparaging remarks, comments, or statements, concerning Gradle, its businesses, or any of its employees, officers, shareholders, advisors, directors or representatives. This Section 16 shall not, in any way, restrict or impede Customer from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. 

17. Customer Users. Customer shall be fully liable to Gradle for its and the Customer Users’ compliance and performance of Customer’s obligations under this Agreement. Customer shall be responsible for all acts and omissions of the Customer Users.

18. General

18.1 Governing Law; Jurisdiction. This Agreement shall be governed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. IT IS AGREED THAT JURISDICTION AND VENUE FOR ANY CLAIM OR CONTROVERSY ARISING BETWEEN THE PARTIES UNDER THE TERMS OF THIS AGREEMENT SHALL LIE EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF SAN FRANCISCO TO THE EXCLUSION OF ALL OTHERS REGARDLESS OF NEXUS. Customer hereby submits to the jurisdiction and venue set forth in this Section 18.1.

18.2 Amendment. This Agreement may only be amended with a written document agreed to by each of the Parties. Any amendment or waiver affected in accordance with this Section shall be binding upon the Parties. Failure to enforce any provision of this Agreement by a Party shall not constitute a waiver of any term hereof by such Party.

18.3 Counterparts. This Agreement may be executed in two or more counterparts, including copies of electronic transmission, each of which shall be deemed an original and all of which together shall constitute one instrument.

18.4 Assignment. Customer has no right to assign this Agreement.

18.5 Severability. If one or more provisions of this Agreement is held to be unenforceable under existing law, or by subsequent enactment, or as amended, such provision(s) shall be struck as if never a part of the Agreement and, to the extent possible, the remainder of the Agreement shall be construed in a manner that best reflects the original intent of the Parties.

18.6 Notice. Any notices shall be given to the signing Party at the addresses indicated above. Notice shall be deemed given upon personal delivery, or if sent by mail, three (3) days from the date of mailing. Email sent to the contract signatory within seventy-two (72) hours of an event requiring notice is likewise sufficient. Each Party shall keep the other information of any address changes.

18.7 Negotiation. This Agreement is the result of negotiation between the Parties and, accordingly, shall not be construed more strongly for or against either Party regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof.

18.8 Independent Contractor. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.

18.9 Survival. The provisions of this Agreement which by their sense and context should survive any termination or expiration of this Agreement, including without limitation Sections 3 – 17 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties.

18.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes any and all prior discussions including representations, oral or written, negotiations and drafts which shall cease to have any force or effect. Any amendments or modifications to this Agreement must be written and signed by both Parties. Any and all other written or oral agreements existing between the Parties regarding this Agreement shall have no force and effect. This Agreement was negotiated in good faith by the Parties.