Gradle Software Evaluation Agreement

Effective starting: June 4, 2021

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 (“Gradle”). If you are agreeing to this Agreement not as an individual but on behalf of your organization, then the terms “Customer” or “you” shall refer to your company, and you are binding your company to this Agreement. Customer and Gradle may be referred to in this Agreement collectively as “Parties” or each individually as a “Party”. References to “us” and “we” in this Agreement shall refer to Gradle. References to “you” or and “yours” in this Agreement shall refer to the Customer.

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 indicate that you agree to be bound by this Agreement. The Parties hereby agree as follows:

1. Purpose. Customer desires to evaluate the Develocity software program (the “Software”) for potential purchase.

2. License Grant. Subject to the terms of this Agreement, Gradle grants Customer a non-exclusive, non-sublicenseable and non-transferable license to install 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 Customer’s internal evaluation purposes during the Evaluation Term. 

3. Ownership. Gradle and its licensors hold and retain all rights, title and interests, 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 as they may incorporate Feedback.

4. Restrictions on Use. Customer shall not, and shall not permit any third party to: (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.

5. Evaluation Term. The license granted herewith is for an initial period of thirty (30) days (the “Evaluation Term”), unless earlier terminated.  The Evaluation Term may be extended for successive thirty (30) day periods by mutual written 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 Software and delete it from its systems.

6. 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; 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. NO OTHER WARRANTIES SHALL APPLY.

7. 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 LICENSOR BE LIABLE TO LICENSEE FOR ANY ACTION OR REMEDY BEYOND THOSE DESCRIBED IN THIS AGREEMENT. 

8. 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 CONFIDENTIAL MATTER.

9. Confidential Information.

9.1 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.

9.2 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 recission 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.

10. Export.  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 and import laws and regulations in this regard. 

11. Feedback.  From time to time, Customer may provide Gradle with feedback on the Service. Such feedback is voluntary and Gradle has no obligation to hold it in confidence. Gradle may use the feedback in any way without obligation and Customer agrees that Gradle shall have a perpetual, irrevocable license for such usage. 

12. General

12.1 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 12.1.

12.2 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.

12.3 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.

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

12.5 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.

12.6 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.

12.7 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.

12.8 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.

12.9 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 – 12 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties.

12.10 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.