This Beta Software Evaluation Agreement (this “Agreement”) is entered into by and between Gradle Inc., a Delaware corporation with offices located at 325 9th Street, San Francisco, CA 94103 (“Gradle”), and you (“Customer”).
1.1. “Beta Software” means software that is made available for download through the Gradle.com website or that has been expressly identified by Gradle as “pre-release” or “beta software.”
1.2. “Commercial Release” has the meaning set forth in Section 2.
1.3. “Confidential Information” means all information provided to or accessed by Customer under the Early Access Program and/or this Agreement, including information concerning research, development, design details and specifications, engineering, employees, business relationships, and marketing plans, as well as trade secrets and proprietary information involving ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, algorithms, software and formulae related to Gradle’s current, future, or proposed products and services. Without limiting the foregoing, the Beta Software, Documentation, Feedback and related information are Confidential Information and contain valuable trade secrets of Gradle.
1.4. “Documentation” means the user documentation provided by Gradle to Customer in connection with the Beta Software.
1.5. “Early Access Program” means accessing the Beta Software to engage in one or more of the following activities: (a) viewing the feature set; (b) performing tests and generating feedback as to the feature set, and (c) performing tests to discover bugs, and evaluate and assess the strengths and weaknesses of the Beta Software.
1.6. “Feedback” has the meaning set forth in Section 4.
1.7. “Gradle Open Source” means Gradle software made available by Gradle through the Gradle.org website or another publicly accessible location in source code form and under the terms of one or more open-source licenses.
1.8. “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection (and all rights in applications and registrations therefor).
2. Beta Version. Customer agrees that: (i) the Beta Software is a beta test version of unreleased software that may contain bugs, defects and errors, (ii) the Beta Software may not contain the features or functionality of the software that Gradle may make available for commercial distribution (the “Commercial Release”), and (iii) any Feedback with respect to Customer’s use of the Beta Software is subject to the ownership provisions of Section 6, and may be used by Gradle in Gradle’s development of, and be incorporated into, the Beta Software and Commercial Releases.
3. License. Software provided by Gradle is protected by applicable copyright, patent, or other intellectual property rights of Gradle and its third-party licensors. Beta Software is provided under the terms of this Agreement and any additional end-user agreements or terms provided with the Beta Software. To the extent such additional end-user agreements or terms conflict with this Agreement, the additional end-user agreements and terms will control. Gradle Open Source is governed solely by the terms of the applicable open source licenses.
3.1. Grant. Subject to the terms of this Agreement, Gradle grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable license to: (a) install and execute the Beta Software on Customer’s servers, solely for the purpose of participating in the Early Access Program; and (b) copy the Beta Software solely for the purpose described in clause (a), provided Customer reproduces (and does not obscure or alter) any proprietary notices/legends thereon or therein.
3.2. Restrictions on Use. Except to the extent that the following restrictions are prohibited by law, Customer agrees not to (and not to assist, encourage, or authorize any third party to) do any of the following: (a) copy, alter, adapt, modify, create derivative works of, translate, reverse engineer, decompile disassemble, or otherwise attempt to derive the source code of the Beta Software or Documentation or any part thereof; (b) market, distribute, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver or otherwise transfer copies of the Beta Software or Documentation to any third party; (c) rent, lease, or loan the Beta Software; (d) provide or make available to any third party any communication that discloses the features, functions, or performance characteristics of the Beta Software; or (e) use any portion of the Beta Software in combination with or in support of products or services not provided by Gradle or for any illegal purpose.
4. Testing Requirements and Delivery of Feedback. Customer agrees to use good faith efforts to test, use, and evaluate the Beta Software in non-production operations. Customer will provide to Gradle comments, criticisms, suggested changes and improvements, test results, problems, defects and other feedback regarding the function, features, and other characteristics of the Beta Software in written or oral form (“Feedback”) during the term of this Agreement and will respond to Gradle’s questions regarding the Beta Software and its performance. Customer acknowledges and agrees that the Beta Software is being licensed to Customer without charge and solely in exchange for the Feedback.
5. No Services or other Obligations. Gradle has no obligation under this Agreement or otherwise to correct any bugs, defects or errors in the Beta Software or otherwise to support or maintain the Beta Software. Moreover, Gradle has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, Gradle has no obligation to offer the Commercial Release to Customer or otherwise under any discounted pricing schedules or special terms. Customer understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the Beta Software. Accordingly, Customer acknowledges that any research or development performed, or business plans made, by Customer regarding or in reliance upon the Beta Software are done entirely at Customer’s own risk. Customer is not entitled to receive any support or maintenance services pursuant to this Agreement. Notwithstanding the forgoing, Customer agrees that Gradle may automatically update the Beta Software, with or without notice to Customer, and that the terms of this Agreement will apply to all such updates.
6. Proprietary Rights.
6.1. Ownership. Gradle and its suppliers own and will continue to own all Intellectual Property Rights in and to the Beta Software and Documentation, and any full or partial copies thereof, including any additions or modifications thereto. All rights not expressly granted to Customer in this Agreement are expressly reserved to Gradle and its licensors. Customer agrees that the Feedback will be the sole and exclusive property of Gradle and is deemed the Confidential Information of Gradle. Customer agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Gradle and that Customer will gain no right, title or interest in or to the Beta Software, Documentation or any Commercial Release by virtue of Customer’s provision of Feedback to Gradle or for any other reason.
6.2. Assignment. If, if in connection with this Agreement, Customer retains any right, title or interest in or to (a) the Beta Software or Documentation (including any changes, modifications or corrections thereto); (b) any Commercial Release based on the Beta Software; or (c) the Feedback, then Customer hereby irrevocably assigns to Gradle all such right, title and interest therein. If any such rights cannot be assigned, Customer hereby agrees to waive enforcement worldwide of such rights against Gradle and its licensees and hereby grants to Gradle an exclusive, fully-paid, worldwide, irrevocable, perpetual license, with right to sublicense through multiple tiers of licensees, to use, reproduce, distribute, create derivative works of, publicly perform and publicly display, sell, import, manufacture and otherwise exploit, in any medium or format, whether now known or later developed, any and all property that is subject to such rights. Customer agrees that it will not claim any proprietary rights in or to the Feedback, Beta Software, Documentation, or the Commercial Release. Customer will cooperate with Gradle and will take all actions, including the execution, verification, and delivery of documents, as Gradle may reasonably request to evidence, perfect or protect Gradle’s rights in and to the Beta Software, Feedback, Documentation or any Commercial Release.
7. Term and Termination. This Agreement and the licenses granted hereunder will commence as of Customer’s initial installation of the Beta Software (the “Effective Date”) and will continue, unless earlier terminated as set forth herein. This Agreement will terminate immediately and without notice to Customer if Customer breaches any term or condition of this Agreement. Either party may terminate this Agreement with or without cause upon three (3) days’ notice to the other party. Upon expiration or earlier termination of this Agreement for any reason, all licenses and permissions granted to Customer under this Agreement will terminate immediatelyCustomer must promptly return to Gradle or destroy all Confidential Information, including the Beta Software and Documentation, and all copies thereof and certify to Gradle in writing that Customer has done so. Sections 3.2, 4, 6 and 7 through 11 will survive the expiration or termination of this Agreement for any reason.
8. DISCLAIMER OF WARRANTY. CUSTOMER ACKNOWLEDGES THAT THE BETA SOFTWARE IS PRERELEASE CODE FOR TESTING PURPOSES ONLY, IS NOT AT THE LEVEL OF PERFORMANCE AND COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING, AND MAY NOT OPERATE CORRECTLY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BETA SOFTWARE AND ALL DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. GRADLE DOES NOT WARRANT THAT THE BETA SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION OR THAT IT IS ERROR-FREE. NO INFORMATION OR ADVICE GIVEN BY GRADLE OR ITS AGENTS WILL AFFECT THIS PROVISION
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GRADLE OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO BUSINESS INFORMATION OR DATA OR OTHER PECUNIARY LOSS, OR FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE BETA SOFTWARE OR DOCUMENTATION, EVEN IF GRADLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL GRADLE’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE) EXCEED \$100. GRADLE’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY HEREUNDER FOR DAMAGES OR OTHERWISE. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY (AND WARRANTY DISCLAIMERS SET FORTH IN SECTION 8) FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND GRADLE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS.
10. Confidential Information. Customer will hold Gradle’s Confidential Information in strict confidence and will not disclose Confidential Information to any third party. Customer will take all precautions to protect such Confidential Information as Customer employs with respect to its most confidential materials, but in no case less than reasonable precautions. Customer will grant access to the Confidential Information only to its employees who (i) are required to access the Confidential Information for the Early Access Program, and (ii) have agreed in writing to maintain such information in confidence on terms at least as protective as the terms of this Agreement. Customer will be responsible for the acts and omissions of its employees in connection with this Agreement. If Customer becomes aware of any unauthorized use or disclosure of Confidential Information, Customer will notify Gradle immediately in writing and will fully cooperate, to minimize the effects of such use or disclosure.
11.1. Governing Law. This Agreement will be governed under California law, without regard to any choice of laws principles that would require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a court in San Jose County, California, and each party irrevocably submits to the jurisdiction and venue of, and service of process by, any such court. THE PARTIES EXPRESSLY EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
11.2. Remedies. Customer acknowledges that Gradle’s Confidential Information contains Gradle’s valuable trade secrets and proprietary information, that any actual or threatened breach of the provisions of this Agreement might cause immediate, irreparable harm to Gradle for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy in such instance. Each party’s rights and remedies hereunder are cumulative, and not in lieu of, any other rights or remedies. The prevailing party in any proceedings or lawsuit brought in connection with this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.
11.3. Relationship between the Parties. The parties hereto are independent contractors. No agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority to represent, bind, or create or assume any obligation on behalf of the other party.
11.4. No Assignment. Customer may not assign this Agreement, nor any rights or obligations hereunder, by operation of law or otherwise, without Gradle’s prior written consent; any such assignment is null and void.
11.5. Compliance with Export Laws. The Beta Software and related technical information and materials may be subject to export controls under U.S. or other export laws and regulations. Customer agrees that Customer will not export or re-export the Software in violation of the laws and regulations of the United States or any other jurisdiction.
11.6. Notice. Notices under this Agreement must be in writing, and sent by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand. If mailed, any such notice will be considered to have been given five (5) business days after mailing. If delivered by hand, any such notice will be considered to have been given when received. The address for notice to either party will be the address shown in the preamble, and sent to the attention of each party’s respective CEO. Either party may change its mailing address by notice as provided by this section.
11.7. Waiver; Severability. All waivers must be in writing. Any waiver of either party to enforce a provision of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision or portion thereof affected will be reformed to the maximum extent permissible by law in order to achieve, as closely as possible, the intent of the original provision. Without limiting the generality of the foregoing, Customer agrees that Section 9 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (“Disclaimer of Warranty”).
11.8. U.S. Government End Users. If Customer is a branch agency or instrumentality of the United States Government, the following provision applies. Gradle provides the Beta Software, including related technology, in accordance with the following: Government technical data and software rights related to the Beta Software include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Gradle to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement.
11.9. Counterparts; Construction. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. As used herein, “including” means “including, but not limited to”.
11.10. Compliance with Laws. Each party will comply with all federal, state, and local laws applicable to the Beta 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.
11.11. Entire Agreement. This Agreement, including any and all exhibits and other documents attached hereto or referred to herein (which are incorporated herein by this reference), comprises the entire agreement between Customer and Gradle and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. No modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged. Any preprinted terms on any Customer ordering documents will have no effect on the terms of this Agreement and are hereby rejected.
Last updated: November 19, 2015
Gradle, Inc. ("us", "we", or "our") operates the Gradle.com website (the "Service").
This page informs you of our policies regarding the collection, use and disclosure of Personal Information when you use our Service.
Information Collection And Use
DO NOT DISCLOSE ANY INFORMATION TO GRADLE YOU DO NOT HAVE PROPER AUTHORIZATION TO DISCLOSE.
By disclosing the information to Gradle, we presume you give Gradle permission to use the information to deliver the service on your behalf.
While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information may include, but is not limited to, your email address, Name, and employer's name. ("Personal Information").
We collect this information for the purpose of providing the Service, identifying and communicating with you, responding to your requests/inquiries, servicing your purchase orders, and improving our services.
We may also collect information that your browser sends whenever you visit our Service ("Log Data"). This Log Data may include information such as your computer's Internet Protocol ("IP") address, browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages and other statistics.
The service itself collects Gradle project information like: stack trace frames, filenames, and project structure as part of the value it delivers to you.
In addition, we may use third party services such as New Relic, Google Analytics and Mixpanel that collect, monitor and analyze this type of information in order to increase our Service's functionality. These third party service providers have their own privacy policies addressing how they use such information.
You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. The Help feature on most browsers provide information on how to accept cookies, disable cookies or to notify you when receiving a new cookie.
If you do not accept cookies, you may not be able to use some features of our Service and we recommend that you leave them turned on.
Do Not Track Disclosure
We support Do Not Track ("DNT"). Do Not Track is a preference you can set in your web browser to inform websites that you do not want to be tracked.
You can enable or disable Do Not Track by visiting the Preferences or Settings page of your web browser.
We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services and/or to assist us in analyzing how our Service is used.
These third parties have access to your Personal Information only to perform specific tasks on our behalf and are obligated not to disclose or use your information for any other purpose.
We may use your Personal Information to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
The security of your Personal Information is important to us, and we strive to implement and maintain reasonable, commercially acceptable security procedures and practices appropriate to the nature of the information we store, in order to protect it from unauthorized access, destruction, use, modification, or disclosure.
However, please be aware that no method of transmission over the internet, or method of electronic storage is 100% secure and we are unable to guarantee the absolute security of the Personal Information we have collected from you.
Your information, including Personal Information, may be transferred to — and maintained on — computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may differ than those from your jurisdiction.
If you are located outside United States and choose to provide information to us, please note that we transfer the information, including Personal Information, to United States and process it there.
Links To Other Sites
We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites or services.
Only persons age 18 or older have permission to access our Service. Our Service does not address anyone under the age of 13 ("Children").
We do not knowingly collect personally identifiable information from children under 13. If you are a parent or guardian and you learn that your Children have provided us with Personal Information, please contact us. If we become aware that we have collected Personal Information from a children under age 13 without verification of parental consent, we take steps to remove that information from our servers.
If you have any questions, please contact us.