Gradle Software Evaluation Agreement

Effective starting: October 27, 2023

This Gradle Software Evaluation Agreement (the “Agreement”) is between you (including your affiliates, the “Customer”) and Gradle, Inc., a Delaware corporation with its principal place of business at 2261 Market Street #4081, San Francisco, CA 94114 (including its affiliates, “Gradle”). If you are agreeing to this Agreement not as an individual but on behalf of your organization or employer, then the terms “Customer” or “you” shall refer to your organization or employer, and you are binding your organization or employer to this Agreement. Customer and Gradle may be referred to in this Agreement collectively as “Parties” or each individually as a “Party”. 

By clicking on the “I agree” (or similar) button or checkbox that is presented to you at the time you place an order to evaluate the Software (as defined below), or by using the Software, YOU ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND YOUR EMPLOYER OR ORGANIZATION, IF APPLICABLE, TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR AN ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL LEGAL AUTHORITY AND ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON YOUR EMPLOYER’S OR SUCH ORGANIZATION’S BEHALF.

  1. Purpose.  Customer desires to evaluate a Gradle software program or product (the “Software”) for potential purchase (the “Purpose”). For the avoidance of doubt, the term “On-Prem Software” shall refer to the instance of the 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 Customer’s compliance with 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 for and in the furtherance of the Purpose during the Evaluation Term.
  3. Third Party Services.  If Customer is using an instance of the Hosted Software, Customer acknowledges and agrees that the Hosted Software operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Gradle is not responsible for the operation of any Third Party Services nor the availability or operation of the Hosted Software to the extent such availability and operation is dependent upon Third Party Services. Gradle does not make any representations or warranties with respect to Third Party Services or any third party providers.  Gradle uses a third-party hosting provider to provide the Hosted Software and services and Gradle shall not be liable for any service interruptions caused by or due to the unavailability of the service by Gradle or its subprocessors.  Customer agrees that it shall abide by the acceptable use terms of the third-party hosting provider.
  4. Ownership. Gradle and its licensors hold and retain all rights, title and interests, including all intellectual property rights, in and to the Software, its “look and feel” and all related underlying technology, including modifications, or derivative works of the foregoing, created by or for Gradle, including without limitation as they may incorporate Feedback (as defined below).
  5. Restrictions on Use. Customer shall not, and shall not permit any third party 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, (b) use the Software for the benefit of any third party, (c) incorporate the Software into a product 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, or (g) publicly disseminate information regarding the performance of the Software.
  6. 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.
  7. Customer Data.  “Customer Data” means data that Customer submits, posts or otherwise uploads to the Software during the Evaluation 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 it is legally prohibited from sharing. Customer shall not use the Software or services to process sensitive information, or credit card data. As between the parties, 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. If Customer is using the Hosted Software, Customer hereby grants to Gradle and its affiliates a non-exclusive, worldwide, royalty-free right to process, use, copy, store, transmit, publicly display, modify, reproduce or create derivative works of the Customer Data but only as necessary to provide the Hosted Software or any associated services. Notwithstanding anything to the contrary in this Agreement, with respect to Customer’s use of any Hosted Software, Gradle may collect and use Usage Data (as defined below) to develop, improve, support, and operate its products and services. Gradle may not share any Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 12 (Confidentiality) of this Agreement, or (b) to the extent the Usage Data is aggregated and anonymized such that Customer and its users cannot be identified. “Usage Data” means usage and operations data in connection with the Customer’s use of the Hosted Software, including query logs and metadata.
  8. Evaluation Term. The license granted herewith is for an initial period of thirty (30) days commencing, for the On-Prem Software, as of the date the license key to the On-Prem Software is provided to Customer, and for the Hosted Software, as of the date Gradle provides Customer with access to the Hosted Software for (the “Evaluation Term”), unless earlier terminated.  The Evaluation Term may be extended for successive thirty (30) day periods by mutual agreement of the Parties. Either Party may terminate this Agreement at any time during the Evaluation Term upon written notice to the other Party. Upon expiration of the Evaluation Term, Customer shall de-install the On-Prem Software and delete it from its systems and Customer shall no longer have any right to use the Hosted Software. 
  9. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, “WITH ALL FAULTS” AND “AS AVAILABLE.” GRADLE DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM, OR PROCESSED BY, THE SOFTWARE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GRADLE DISCLAIMS ALL 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; AND/OR (11) 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. 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.
  10. 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. 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. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IT IS BEING PROVIDED, ALONG WITH ANY SOFTWARE DOCUMENTATION, 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. THIS OBLIGATION SHALL BE MUTUAL AND ANY CUSTOMER INFORMATION OUTSIDE THE ORDINARY THAT COMES INTO GRADLE’S POSSESSION, LIKEWISE, SHALL BE TREATED AS A CONFIDENTIAL MATTER.
  11. Indemnification. Customer shall defend Gradle against any claim by a third party arising from or relating to any Customer Data or any Customer-offered product or service used in connection with the Software and shall indemnify and hold harmless Gradle from and against any damages and costs awarded against Gradle or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
  12. Confidential Information.
    • 11.1 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.
    • 11.2 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, Gradle and the Customer each 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. Notwithstanding the above, the receiving Party may retain one copy of the Confidential Information as may be legally required, provided such Confidential Information remains subject to the confidentiality obligations of this Agreement.
  13. Export Restrictions. The Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer agrees to comply with all applicable export laws and regulations, including those of the United States, to ensure the technology and Software provided by Gradle or its affiliates under this Agreement is not used, sold, disclosed, released, transferred, or re-exported in violation of such laws and regulations.
  14. Feedback. From time to time, Customer may provide Gradle with feedback on the Software (“Feedback”). Such feedback is voluntary and Gradle has no obligation to hold it in confidence.  Customer shall, and hereby does, grant to Gradle a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
  15. General
  • 15.1 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 15.1
  • 15.2 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.
  • 15.3 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.
  • 15.4 Assignment. Customer is not permitted to assign this Agreement.
  • 15.5 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.
  • 15.6 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.
  • 15.7 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.
  • 15.8 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.
  • 15.9 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 – 14 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties.
  • 15.10 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.