Gradle Software Evaluation Agreement

Effective starting: September 16, 2020

This Gradle Software Evaluation 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 Gradle Enterprise, you indicate your assent to be bound by this Agreement.

The parties hereby agree as follows:

Software. Software means the software program, including all associated user manuals and documentation provided by Gradle.

Purpose. Company desires to evaluate the following Gradle’s software products for potential purchase.

Gradle Enterprise

License Grant and Ownership. The Software is made available on a limited license or access basis. 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 (“Gradle Technology”). During the Evaluation Period, Gradle grants Company a non-exclusive, non-sublicenseable and non-transferable license to install and use Software during any agreed upon Evaluation Term in accordance with this Agreement, the applicable Scope of Use, and the Documentation.

Restrictions on Use. Company 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 Company 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 Company’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 as may be permitted in relation to open source material, (f) remove or obscure any proprietary or other notices contained in the Software, or (g) publicly disseminate information regarding the performance of the Software.

Evaluation Term. The license granted herewith is for a period of thirty (30) days (“Term”). Either party may terminate this evaluation at any time upon written notice to the other party. Upon expiration of the Term, Company will de-install the Software and delete it from their systems.

WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. GRADLE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF MERCHANTABILITY, AND TITLE/NON-INFRINGEMENT. GRADLE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET COMPANY’S REQUIREMENTS OR THAT THE SOFTWARE WILL BE ERROR FREE. GRADLE DOES NOT WARRANT THE DOCUMENTATION. NO OTHER WARRANTIES SHALL APPLY.

LIMITATION OF LIABILITY. GRADLE WILL NOT BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY INCIDENTIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, EVEN IF GRADLE IS APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. GRADLE’S ENTIRE LIABILITY TO COMPANY UNDER THIS AGREEMENT FOR ALL CAUSES OF ACTION SHALL NOT EXCEED $1.000 (ONE THOUSAND DOLLARS).

COMPANY ACKNOWLEDGES THAT THE SOFTWARE IT IS BEING PROVIDED, ALONG WITH ANY SUPPORTING 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.

Confidential Information.

9.1 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 includes but is not limited to: computer programs, object and source codes, algorithms, documentation, data, know-how, business and financial information, development plans and customer lists. Information need not be marked to be deemed Confidential. Confidential Information will not apply to 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 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. 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 obligations imposed by this Agreement. Each of us will be responsible for all acts and omissions of our Representatives.

Export. The Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Company agrees to comply with all applicable export and import laws and regulations in this regard.

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.

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 shall LIE exclusively IN COURTS located in THE CITY AND COUNTY OF SAN FRANCISCO TO THE EXCLUSION OF ALL OTHERS REGARDLESS OF NEXUS. This Agreement may only be amended with a written document agreed to by 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.

12.2 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.

12.3 Assignment. Company has no right to assign this Agreement.

12.4 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.

12.5 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 will keep the other information of any address changes.

12.6 The fact that one party or the other drafted this contract shall not be held for or against them. As a contract to receive free services and software, it is agreed that the maximum amount of damages, of all types collectible from Gradle shall be five-hundred-dollars, $500.00.

12.7 Equal Opportunities. Gradle is an equal opportunity company that does not discriminate on the basis of gender, sexual identification, religion, or nationality. We consider our employees are our best and primary asset and will assist all customers with courtesy and respect. Please bring any deviations to our attention via the Gradle legal department.

12.8 Independent Contractor. The parties are independent contractors with respect to the subject matter of this Agreement.

12.9 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 will cease to have any force or effect. Changes are required to be in writing 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.