Online Software License Agreement
Last Updated: March 29, 2021
Thank you for your interest in using CircleCI’s services!
This Online Software License Agreement is incorporated by reference into each Order and Statement of Work that Licensee may enter into with Circle Internet Services, Inc., dba, CircleCI, a Delaware corporation (“CircleCI”). CircleCI and Licensee are each considered a “Party” (collectively, the “Parties”). Capitalized terms not defined herein shall have the meaning set forth in the applicable Order.
Any User of the Services must be eighteen (18) years old or older to use the Services.
By accepting this Agreement on behalf of their employer or another entity, an individual represents and warrants that they: (i) have full legal authority to bind their employer or such entity to the terms of this Agreement; (ii) have read and understand the terms of this Agreement; and (iii) agree to the terms of this Agreement on behalf of the party that they represent. The right to access and use the Services, whether or not an Order has been signed between the Parties, is expressly conditioned on acceptance of this Agreement.
This Agreement is effective as of the earliest of (i) the date Licensee first accesses the Services, or (ii) the effective date set forth on the initial Order (the “Effective Date”). This Agreement does not have to be signed in order to be binding. For Evaluation Services, Licensee also indicates acceptance of the terms of this Agreement by accessing or using the applicable Evaluation Services.
This Online Software License Agreement is effective as of March 29, 2021. If, as of March 29, 2021, Licensee is in the midst of an Order Term, CircleCI will continue to be governed by the legacy Enterprise License Agreement dated March 6, 2017, which is linked at the bottom of this Online Software License Agreement, until the earlier of Licensee’s agreement to migrate through execution a Migration Order Form or renew through the execution of a Renewal Order Form. At that point, this March 29. 2021 Online Software License Agreement shall supersede all prior License Agreement versions. If Licensee objects to the March 29, 2021 Online License Subscription Agreement, it may choose not to renew, in accordance with the terms of the expiring Order Form, as its sole and exclusive remedy.
Definitions Used in this Agreement.
- “Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
- “AUP” means CircleCI’s standard Acceptable Use Policy, currently available at https://circleci.com/legal/acceptable-use/.
- “CircleCI Content” means all software (including the Software), data, Documentation, images, Releases, reports, sounds, text, video, and content made available through the Service.
- “Confidential Information” means any technical, financial, business or other information, including employee and/or agent names, telephone numbers, and email addresses of a Party provided by one Party to the other Party, either designated as confidential or proprietary, or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
- “Disclosing Party” means the Party that provides Confidential Information to the other Party.
- “Documentation” means any manuals, instructions or other documents or materials that CircleCI provides or makes available to Licensee in any form or medium and which describe the functionality, components, features or requirements of the Service or CircleCI Content, including the Specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.
- “Feedback” means any suggestion, idea, improvement, enhancement request, recommendation, correction or other feedback provided by Licensee or any User relating to the operation of the Service.
- “Intellectual Property Rights” means legal rights to intangible creations owned or licensed by a Party under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide.
- “Licensee” means the entity who enters into this Agreement to receive Service from CircleCI in exchange for payment agreed to in an Order executed by the parties. Licensee includes, collectively, Licensee’s directors, officers, employees, consultants, contractors, representatives, agents and Affiliates, as defined above, and such Affiliate’s respective employees, consultants, contractors, representatives and agents.
- “License Key” means the data file used by the Software's access control mechanism that allows a Licensee to install, operate, and use the Software is delivered via a secure, password-protected website.
- “Non-CircleCI Applications” means any Internet-based or offline software application that is provided by Licensee or a third party and interoperates with the Service.
- “Order” means any order form, or other ordering document, including, but not limited to, any Internet-based or email-based ordering mechanism or registration process (e.g., Licensee’s account page in the Service) specifying the level of the Service to be provided hereunder and associated fees therefor that is entered into between Licensee and CircleCI or any of CircleCI’s respective Affiliates, including any addenda and supplements thereto. By entering into an Order hereunder, any Licensee Affiliate agrees to be bound by the terms of this Agreement as if it were Licensee.
- “Pricing Page” means the publicly available web page(s) where CircleCI publishes its list prices for the Service, currently available at https://circleci.com/pricing/.
- “Privacy Laws” means all laws and regulations regarding data privacy and transmission of personal data that apply to CircleCI’s provision of the Services to Licensee (e.g., storing and processing Licensee Confidential Information), including, without limitation, Articles 25(1) and 26(1) of EU Directive 95/46/EC of 24 October 1995, General Data Protection Regulation 2016/679 (GDPR) and California Consumers Privacy Act of 2018 (CCPA).
- “Receiving Party” means the Party that receives Confidential Information from the other Party.
- “Release” means a dated, numbered publication of Software that CircleCI generally makes available to its Licensees, along with any corresponding changes to Documentation, that contains enhancements, new features, or new functionality, generally indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x).
- “Secure Contractor” means a contractor of CircleCI who shall at all times be under contractual commitment to CircleCI to maintain all Confidential Information in confidence.
- “Service” means (i) the Site, (ii) CircleCI’s continuous integration Software and related technologies, and (iii) all CircleCI Content, collectively.
- “Site” means the web site located at https://circleci.com/ or any successor URL where Licensee enters the License Key to receive the Software.
- “Software” means any software that may be made available by CircleCI in connection with the Service.
- “Specifications” means the description of the minimum standards required, and the mode, means and mechanisms of action or functionality for the Service set forth in the Documentation.
- “Supplemental Terms” means additional terms that apply to a portion of the Service, including any product-specific terms that may be agreed by the Parties.
- “Support” means the free, community-based online help forums sponsored by CircleCI and fee-based individualized help with the Service that may be available to Licensee by email, meetings or other communication modes available now or on the future, at CircleCI’s sole option, as further defined in Section 8.
- “Term” means the Initial Term plus any and all Renewal Terms, collectively, as further defined in Section 11.
- “Third-Party Content” means information and data obtained by CircleCI from publicly available sources or CircleCI’s third-party content providers and made available to Licensee and its Users through the Services, Evaluation Services or pursuant to an Order.
- “Update” means a dated, numbered publication of Software that CircleCI generally makes available to its Licensees, along with any corresponding changes to Documentation, that contains error corrections or bug fixes, generally indicated by a change in the digit to the right of the second decimal point (e.g., x.x.x to x.x.y).
- “Usage Statistics” means data related to Licensee’s use of the Software.
- “User” means an individual who is authorized by Licensee to use the Services, and who has created a CircleCI account by authorizing the CircleCI application through a Non-CircleCI Application (e.g., CircleCI via OAuth). Users may include, for example, Licensee’s employees, consultants, contractors, representatives and/or agents and Affiliates.
- Provision of CircleCI Service; Supported Releases.
- CircleCI provides Software for continuous integration software development services, and related technologies designed to be downloaded by Licensee from a secure website onto Licensee’s computer servers in its own environment. This Agreement shall apply to all access and use of the Service by Licensee and each of Licensee’s Users.
- CircleCI will make Releases and Updates to the Software available to Licensee on the same secure website from where Licensee downloaded the Software. CircleCI will support one (1) prior major version of its software for one (1) year from the date of the current major version release and will support the latest four (4) minor versions of its Software (“Supported Releases”). In the event more than four (4) minor versions are released, support for the oldest minor version will end upon release of the newest minor version. Licensee must upgrade its instance of the Software on a commercially reasonable basis but no less than one (1) time per year. Licensee’s failure to do so may result in diminished functionality of the Software.
- Agreement Structure and Order of Precedence. If there are any conflicts between this Agreement and any Order, the Order takes precedence and prevails over this Agreement, solely with respect to the subject matter of the applicable Order.
- Free Evaluations. From time to time, CircleCI may invite Licensee and/or its Users to voluntarily try certain features or products at no charge for a free trial or evaluation period (collectively, “Evaluation Services”). Evaluation Services may be designated or identified as beta, pilot, evaluation, trial or the like. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EVALUATION SERVICES ARE LICENSED FOR LICENSEE’S INTERNAL EVALUATION PURPOSES ONLY (AND NOT FOR PRODUCTION USE), ARE PROVIDED BY CIRCLECI ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR INDEMNITY OF ANY KIND AND CIRCLECI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO ANY EVALUATION SERVICES OR ANY FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE CIRCLECI’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING ANY FREE TRIAL SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). WITHOUT LIMITING THE FOREGOING, CIRCLECI AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO LICENSEE OR ANY USER THAT: (A) LICENSEE’S USE OF THE SERVICE DURING ANY FREE TRIAL PERIOD WILL MEET LICENSEE’S REQUIREMENTS, AND (B) LICENSEE’S USE OF THE SERVICE DURING ANY FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY“ SECTION BELOW, LICENSEE SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO CIRCLECI AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF LICENSEE’S USE OF THE SERVICE DURING ANY FREE TRIAL PERIOD, ANY BREACH BY LICENSEE OR ANY OF ITS USERS OF THIS AGREEMENT AND ANY OF LICENSEE’S INDEMNIFICATION OBLIGATIONS HEREUNDER. LICENSEE SHALL REVIEW THE APPLICABLE DOCUMENTATION DURING ANY TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING ANY PURCHASE. Unless otherwise stated in an Order, any Evaluation Services trial period shall expire thirty (30) days from the free trial start date. Notwithstanding the foregoing, CircleCI may discontinue Evaluation Services at any time in CircleCI’s sole discretion and may never make any Evaluation Services generally available. CircleCI shall have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
- Reporting; Data. Licensee acknowledges that the Software contains automated systems and reporting routines that will automatically retrieve and send to CircleCI or its Secure Contractor the Usage Statistics specified at https://circleci.com/docs/server-3-operator-usage-data. CircleCI may (during and after the term hereof) to (i) use the Usage Statistics solely to improve and enhance its products and services and to perform diagnostic and corrective activities for its customers (including Licensee) in connection with such products and services, and (ii) disclose such data solely to Secure Contractors assisting CircleCI in conducting its business. Such Secure Contractors shall work under a contractual commitment to CircleCI to maintain all provided information in confidence, share it only with CircleCI, and not use it for any other purpose. Licensee further acknowledges that the transmission of Usage Statistics to CircleCI or its Secure Contractor may be necessary for the proper functioning, provisioning of Support Services, and improvement of the Software under the terms of this Agreement. Licensee shall use reasonable efforts to allow the communications between Software and the servers of CircleCI or its affiliates for the purpose of such collection of Usage Statistics and shall not attempt to block these communications.
- License by Licensee to Use Feedback. Licensee hereby grants to CircleCI a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or Users relating to the operation of the Service. In no instance shall any feedback be publicly attributed or remunerated by CircleCI to Licensee or any User or contain any Confidential Information of Licensee.
- License and Restrictions; Ownership.
- License. Pursuant to the terms set forth in any applicable Order and this Agreement, CircleCI grants Licensee a non-sublicensable, non-exclusive, nontransferable license to the Software to allow the number of Users provided under such license to use the Software strictly in accordance with the related Documentation made available to Licensee. Each User under the license shall have a unique user account (each a “Sign-on”), as managed and maintained by Licensee. Licensee shall be responsible for safeguarding the security of each Sign-On under the license. Multiple Users may not use the same Sign-on. Licensee may reassign a Sign-on to a new User. When Licensee reassigns a Sign-on from one User to another, Licensee shall block the former User’s user account.
- Restrictions. Licensee shall not (and shall not allow any third party to) (i) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) sublicense, sell, provide, lease, lend, redistribute, assign, use for timesharing or service bureau purposes or otherwise use or allow others to use a Software for the benefit of any third party, (iii) hack or modify the License Key, or avoid or change any license registration process; use the Service, (iv) modify or create derivative works of the Software, or merge the Software with other software; (v) allow the transfer, transmission, export, or reexport of the Service or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, or (vi) use the Software for any purpose other than as expressly licensed herein. All the limitations and restrictions on any Software in this Agreement also apply to documentation. Licensee shall maintain the copyright notice and any other notices that appear on the Software and Documentation and on any copies and any media thereof.
- Free Trial. If the Order permits Licensee to use the Software in accordance with the terms of this Agreement for a free trial period, CircleCI shall make the Software available to Licensee on a trial basis free of charge until the earlier of (a) the end of the free trial period stated on the applicable Order, or (b) the effective date of any Order whereby Licensee begins paying for a license to use the Service. Additional terms and conditions may appear on the Order relating to the free trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING SECTION 13 (LIMITED WARRANTY AND DISCLAIMER) OF THIS AGREEMENT, DURING THE FREE TRIAL, THE SOFTWARE IS PROVIDED “AS-IS“ WITHOUT ANY WARRANTY.
- As to CircleCI. The Service is the property of CircleCI and its licensors, and is protected by copyright, patent, trademark, trade secret and/or other intellectual property laws. Subject to the limited rights CircleCI expressly granted to Licensee in this Agreement, CircleCI and its licensors reserve all of CircleCI’s and its licensors’ right, title and interest in and to the Service, respectively, including all of CircleCI’s and its licensors’ related Intellectual Property Rights. CircleCI grants no rights to Licensee or any User pursuant to this Agreement other than as expressly written.
- As to Licensee Confidential Information. As between Licensee and CircleCI, (a) Licensee Confidential Information is Licensee’s property, and (b) Licensee retains any and all rights, title and interest in and to Licensee Confidential Information. CircleCI’s use of Licensee Confidential Information shall be limited to CircleCI’s providing the Software to Licensee and its Users or as otherwise permitted under this Agreement.
- Set-Up and Support.
- Set-Up. Upon payment of the Fees set forth in the Order, CircleCI agrees to provide a License Key to Licensee to download the Software from a secure, password-protected website. use reasonable commercial efforts to assist Licensee with the installation and set-up of the applicable Software electronically or via telephone.
- Support. CircleCI shall provide community-based support for the Service to Licensee and its Users at no additional charge via CircleCI’s discussion site located at https://discuss.circleci.com, or a successor URL. Each Order provides Server Support, and Licensee may purchase the Platinum Support Upgrade for an additional fee.
- If Licensee Purchases the Service Through a Reseller. Notwithstanding anything to the contrary in this Agreement, if Licensee purchases the Service through a CircleCI-authorized partner or reseller (“Reseller”):
- Licensee agrees to be bound by the terms of this Agreement.
- Instead of paying CircleCI, Licensee will pay the applicable amounts to the Reseller, as agreed between Licensee and the Reseller. CircleCI may suspend or terminate Licensee’s rights to use the Service, if CircleCI does not receive the corresponding payment from the Reseller.
- Licensee’s order details (e.g., the number of Licensee’s Users, the Term, Support Plan, etc.) will be as stated in the Order that the Reseller places with CircleCI on Licensee’s behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to CircleCI. CircleCI will only provision the Service for Licensee after CircleCI receives and accepts the Order from the Reseller.
- If Licensee is entitled to a refund under this Agreement, then unless CircleCI otherwise specifies, CircleCI will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Licensee.
- Resellers are not authorized to modify this Agreement or make any promises or commitments on CircleCI’s behalf, and CircleCI is not bound by any obligations to Licensee other than as set forth in this Agreement, unless agreed in writing by CircleCI and provided to Licensee.
- Fees and Payment.
- Licensee shall pay CircleCI the fees set forth in each Order by and between Licensee and CircleCI, in accordance with the terms set forth therein and this Agreement (“Fees”). Except as otherwise provided in an Order: (a) prices for the Service are set forth on the Pricing Page; (b) Fees are charged annually in advance, except for Fees for mid-Term purchases, which are charged in arrears; and (c) Fees must be paid in U.S. dollars. All amounts paid or payable are non-refundable, non-cancelable and non-creditable. Unless otherwise stated in an Order, Licensee shall be responsible for and shall pay all Taxes imposed on or with respect to the Service that are the subject of this Agreement. “Taxes” mean all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, and other license or business and occupations taxes. For purposes of this Section 10(a), Taxes do not include any Taxes that are imposed on or measured by CircleCI’s net income, property tax, or payroll taxes.
- CircleCI reserves the right to modify the Fees for the Service under one or more Orders, effective upon commencement of the next Renewal Term of the relevant Order(s), by notifying Licensee in writing of the change in Fees before the end of the then-current Term.
- For any upgrade in a subscription level, CircleCI shall immediately charge Licensee the associated Fee for any upgrade in subscription level pursuant to the billing method applicable to Licensee, prorated for the remaining Term; provided, however, any decrease in a subscription level plan cost shall only take effect upon the commencement of the subsequent Renewal Term. Any downgrade of Licensee’s subscription level may cause the loss of features or capacity of Licensee’s and its Users’ accounts. CircleCI does not accept any liability for such loss.
- If any amount owing by Licensee under this Agreement for the Service is ten (10) or more days overdue, CircleCI may, in its sole discretion and without limiting its other rights and remedies, suspend Licensee’s and any of its User’s access to the Service and/or otherwise limit the functionality of the Service until such amounts are paid in full, or terminate the Account in accordance with Section 11(b) below. If CircleCI suspends, limits, or terminates the Service pursuant to this Section 10(d), then CircleCI will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Licensee may incur in connection with any such actions. Additionally, any payments more than ten (10) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law.
- Licensee agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by CircleCI regarding any future functionality or features.
- Term and Termination.
- Term of Agreement and Orders. This Agreement shall begin on the Effective Date and continue in effect until terminated. Each Party may terminate this Agreement with sixty (60) days’ advance written notice if all Terms of Orders for the Service have expired or are terminated in accordance with Section 11(b). The Term of each Order shall be set forth therein, starting on the Effective Date of the Order and continuing for the time period specified. Upon expiration of the Initial Term, the relevant Order shall automatically renew for a subsequent renewal term of equal length to the then-current Term (each a “Renewal Term”) unless (i) otherwise set forth in the applicable Order; (ii) the Order is terminated in accordance with Section 11(b) of this Agreement; or (iii) either Party provides notice of non-renewal no less than sixty (60) days prior to the end of the then-current Term.
- Termination; Survival; Effect of Expiration or Termination.
- Either Party may terminate any Order in accordance with its terms. If not specified in the applicable Order, then either Party may terminate any Order for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving a reasonably detailed written notice from the other Party alleging the breach. CircleCI may terminate any Order for cause upon written notice (i) within ten (10) days in the case of non-payment; and (ii) immediately in the case of Licensee’s or any of its User’s breach of Section 7(b). Upon any termination of this Agreement due to CircleCI’s uncured material breach of this Agreement, CircleCI will provide a refund to Licensee for any prepaid and unused fees paid under this Agreement on a prorated basis. Termination is not an exclusive remedy and all other remedies shall be available whether or not termination occurs.
- All provisions of this Agreement which by their nature should survive expiration or termination shall survive expiration or termination, including, without limitation Sections 3 (Agreement Structure and Order of Precedence), 7 (License and Restrictions; Ownership), 11 (Term and Termination), 12 (Indemnification), 13 (Limited Warranty and Disclaimer), 14 (Limitation of Liability), 15 (Confidentiality), 16 (Privacy, Security, Continuity and Export Control), and 17 (Miscellaneous) of this Agreement shall survive any expiration or termination of this Agreement. The applicable Orders may identify additional terms that shall survive any expiration or termination of this Agreement.
- Regardless of the basis for expiration or termination of this Agreement, upon expiration or termination of an Order or this Agreement, Licensee shall immediately cease use of the Service and return or destroy all copies of the Software and CircleCI Content and all portions thereof in Licensee’s possession and certify such destruction to CircleCI, if such certification is requested by CircleCI.
- Indemnification by CircleCI. CircleCI shall defend, indemnify and hold Licensee harmless from any third party claim, suit or action and all damages, losses and other liability to third parties (including without limitation reasonable attorneys’ fees) arising or resulting from (a) infringement by the Service of any Intellectual Property Rights, or (b) CircleCI’s or its employees’ or agents’ gross negligence, willful misconduct or fraud, in each case provided CircleCI is (i) promptly notified upon Licensee becoming aware of any and all threats, claims and proceedings related thereto, (ii) Licensee reasonably cooperates with CircleCI to resolve the applicable claim and (iii) CircleCI is given the opportunity to assume sole control of the defense of the applicable claim; provided, however, that Licensee’s failure to provide such notice or reasonable assistance to CircleCI in defense of the applicable claim shall not relieve CircleCI of its indemnification obligations hereunder except to the extent that CircleCI is (x) materially prejudiced by such failure, (y) not given reasonable assistance by Licensee, at CircleCI’s cost, in connection with the applicable claim, or (z) not given the opportunity to assume sole control over defense and settlement with regard to the applicable claim. CircleCI shall not agree to any settlement, judgment or other agreement which admits fault or incurs liability of Licensee or the other indemnified party without Licensee’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. CircleCI shall not be responsible for any settlement it does not approve in writing, which approval shall not be unreasonably withheld, conditioned or delayed. The foregoing indemnification obligations under this Section 12(a) do not apply with respect to the Software or portions or components thereof to the extent (i) not supplied by or on behalf of CircleCI, (ii) made in whole or in part in accordance with Licensee specifications where the alleged infringement or misappropriation would not have occurred without compliance with such specifications, (iii) that are modified after delivery in contravention of this Agreement, (iv) combined with other products, processes or materials where the alleged infringement or misappropriation would not have occurred without such combination, (v) Licensee continues allegedly infringing activity after being notified in writing thereof or after being informed in writing of modifications that would have avoided the alleged infringement, or (vi) Licensee’s use of the Service is in contravention of this Agreement (Section 12 (a)(i-vi), collectively, the “Indemnity Exclusions”). THIS SECTION 12(A) AND THE REMEDIAL ACTIONS (AS DEFINED IN SECTION 13) STATE THE ENTIRE LIABILITY AND OBLIGATION OF CIRCLECI AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SERVICE.
- Indemnification by Licensee. Licensee shall defend, indemnify and hold CircleCI harmless from all damages, settlements, including reasonable attorneys’ fees and expenses incurred by CircleCI to the extent resulting from (i) any third-party claim of infringement or misappropriation that is excluded from CircleCI's infringement indemnity obligation as Indemnity Exclusions, (ii) alleging that the Licensee Content infringes or misappropriates such third party’s intellectual property rights or violates applicable law, or (iii) Licensee’s or its employees’ or agents’ gross negligence, willful misconduct or fraud, in each case provided that Licensee (a) is promptly notified upon CircleCI becoming aware of any and all threats, claims and proceedings related thereto, (b) CircleCI reasonably cooperates with Licensee to resolve the applicable claim, and (c) Licensee is given the opportunity to assume sole control of the defense of the applicable claim; provided, however, that CircleCI’s failure to provide such notice or reasonable assistance to Licensee shall not relieve Licensee of its indemnification obligations hereunder except to the extent that Licensee is (x) materially prejudiced by such failure, (y) Licensee is not given reasonable assistance by CircleCI, at Licensee’s cost, in connection with the applicable claim or (z) not given the opportunity to assume sole control over defense and settlement with regard to the applicable claim. Licensee shall not agree to any settlement, judgment or other agreement which admits fault or incurs liability of CircleCI or any other indemnified party without CircleCI’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Licensee shall not be responsible for any settlement it does not approve in writing, which approval shall not be unreasonably withheld, conditioned or delayed.
- LIMITED WARRANTY AND DISCLAIMER. During the Term, CircleCI warrants, for Licensee’s benefit only, that (i) the Software will operate in substantial conformity with the applicable Documentation; and (ii) any set up and support services will be provided in a professional manner substantially in accordance with CircleCI’s applicable support level descriptions. Licensee represents and warrants that it: (i) has the full legal authority to bind itself to the terms of this Agreement; and (ii) has read, understands and agrees to the terms of this Agreement. ANY LIABILITY OF CIRCLECI WITH RESPECT TO A SOFTWARE OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY SHALL BE LIMITED EXCLUSIVELY TO (A) SOFTWARE REPAIR OR (B) SOFTWARE REPLACEMENT OR, (C) IF, IN CIRCLECI’S OPINION, REPAIR OR REPLACEMENT IS IMPRACTICAL, TO TERMINATE THIS AGREEMENT AND REFUND OF THE LICENSE FEE FOR THE PERIOD COMMENCING AT THE DATE OF SUCH TERMINATION BY CIRCLECI THROUGH THE END OF THE TERM ((A) THROUGH (C) IMMEDIATELY ABOVE BEING THE “REMEDIAL ACTIONS”). EXCEPT FOR THE FOREGOING, THE SOFTWARE AND CIRCLECI CONTENT ARE PROVIDED “AS IS“ WITHOUT WARRANTY OF ANY KIND, AND CIRCLECI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, CIRCLECI DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICE IS BUG FREE OR THAT ITS USE SHALL BE UNINTERRUPTED, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY LICENSEE OR ITS USERS, FROM CIRCLECI OR THROUGH THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, CONFIDENTIALITY OBLIGATIONS UNDER SECTION 15, OR LICENSEE’S BREACH OF SECTION 7, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES;, (B) ANY DIRECT DAMAGES, COST, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO A PARTY’S CLAIM; (C) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE OR RIGHTS; OR (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY CIRCLECI TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Confidentiality. All Confidential Information shall be held in confidence and not disclosed and shall not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing. The Receiving Party shall use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). These obligation shall not apply to information that (i) was previously known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure, (ii) is generally and freely publicly available through no fault of the Receiving Party, (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction, or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential Information.
- Privacy, Security, Continuity and Export Control.
- California Consumer Privacy Act. CircleCI represents and warrants to Licensee that, to the limited extent that Licensee is connected to CircleCI’s Site, (i) it is acting as a service provider in connection with this Agreement with respect to the California User Data, and (ii) it may receive the California User Data from Licensee pursuant to a business purpose. While connected to CircleCI’s Site, Licensee represents and warrants to CircleCI that Licensee (i) is acting as a business in connection with this Agreement with respect to the California User Data, and (ii) may share and/or make available to CircleCI the California User Data pursuant to a business purpose and in accordance with the CCPA. CircleCI shall not (i) sell California User Data or (ii) retain, use or disclose California User Data (X) for any purpose other than for the specific purpose of performing the Service or for a commercial purpose other than providing the Service, or (Y) outside of the direct business relationship between CircleCI and Licensee. CircleCI certifies that it understands and will comply with the restrictions in the previous sentence. “California User Data” means the personal information of consumers provided or made available by Licensee to CircleCI. “CCPA” means the California Consumer Privacy Act of 2018 and any regulations promulgated thereunder, in each case, as amended from time to time. The terms “business”, “business purpose”, “consumer”, “personal information”, “sell" and “service provider” as used in this paragraph have the meaning set forth in the CCPA.
- Security of the Service; Protection of Licensee Confidential Information. CircleCI shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee’s Confidential Information in accordance with its Security Compliance Web Page located at https://circleci.com/security/. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Licensee’s Confidential Information (other than by Licensee or its Users). Licensee controls the configuration and maintenance of its environment, and CircleCI shall have no liability to Licensee for any failure by Licensee to secure its environment or damage caused to said environment resulting from Licensee’s use of the Software. CircleCI shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Licensee’s Confidential Information that does not arise from a breach of its obligations under this Section 16(c).
- Export Control. CircleCI’s Software is subject to export and sanctions restrictions administered by the U.S. Government and import restrictions by certain foreign governments, and Licensee will comply with all applicable export and import laws and regulations in Licensee’s use of the Software. Licensee must not, and must not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country or territory; (ii) to anyone on the U.S. Commerce Department’s Entity List or Table of Denial Orders, anyone blocked pursuant to rules administered by the U.S. Office of Foreign Assets Control, including anyone on the List of Specially Designated Nationals or sanctioned country “Government“ entities, or anyone subject to other applicable prohibited or sanctioned persons lists; (iii) to any country or territory to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export, sanctions, or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee represents and warrants that Licensee is not located in under the control of, or a national or resident of any such prohibited country or territory or on any such prohibited party list. CircleCI Server Plan is a self-hosted virtual appliance that can be run within Licensee’s own datacenter or virtual private cloud. As such, CircleCI Server Plan can be used to store ITAR or other export-controlled information. However, Licensee is responsible for ensuring such compliance. Licensee acknowledges and agrees that the Software is restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior required permission of the U.S. government.
- Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed by and construed pursuant to California law and controlling United States federal law, without regard to the conflicts of law provisions of any jurisdiction. For the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, the Parties (i) hereby generally, irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts in San Francisco County, California. In filing or responding to a suit, action or proceeding, each Party hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, (i) that it is not subject personally to the jurisdiction of the above-named courts; (ii) that its property is exempt or immune from attachment or execution; (iii) forum non conveniens; or (iv) that the venue is improper or that this Agreement or that the subject matter hereof may not be enforced in or by such court. This choice of jurisdiction does not prevent either Party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of Intellectual Property Rights. The Agreement is not subject to the Uniform Commercial Code or the United Nations Convention on the International Sale of Goods. If any action is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, costs and expenses, in addition to any other relief that such prevailing Party may be entitled.
- Assignment. Neither Party may assign or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned. Notwithstanding, either Party may assign or otherwise transfer this Agreement, including all associated Orders (and all its rights and obligations thereunder) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of all or substantially all of its assets, or other change of control, or to any of its Affiliates. In the event of such a permitted transfer by Licensee, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under any applicable Order prior to the transfer. Any purported assignment or other transfer in violation of this Section is void. Subject to the terms of this Section, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and transferees. There are no third-party beneficiaries under this Agreement.
- Force Majeure. Except for the payment obligations hereunder, if either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, including, but not limited to, war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance shall be excused for the resulting period of delay or inability to perform. The affected Party must (a) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the period of delay or inability to perform, (c) periodically notify the other Party of significant changes in the status of the Force Majeure, and (d) notify the other Party promptly when the Force Majeure ends.
- Independent Contractors. The Parties are independent contracting parties. Neither Party has, or shall hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement shall not be construed as a joint venture, partnership, franchise, employment, fiduciary, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment and income-related taxes.
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) delivery confirmation by nationally or internationally recognized overnight delivery service; or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of material breach, termination or an indemnifiable claim). Billing-related notices to Licensee shall be addressed to the relevant billing contact designated by Licensee on the applicable Order. All other notices to Licensee shall be addressed to the relevant contact designated by Licensee on the applicable Order. All notices to CircleCI shall be sent to Circle Internet Services, Inc., dba, CircleCI at 201 Spear Street, 12th Floor, San Francisco, CA 94105 USA, Attn: General Counsel, with a courtesy copy emailed to us. Either Party may provide a subsequent notice address in writing to the other Party in the manner provided herein.
- Anti-Corruption. CircleCI complies with all applicable anti-corruption laws, including the United States Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, as each may be amended, and any rules and regulations thereunder, as well as the anti-corruption laws of the countries in which Service are to be performed by CircleCI. Licensee acknowledges that it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any of CircleCI’s employees, representatives or agents in connection with this Agreement. Licensee shall use reasonable efforts to promptly notify CircleCI if Licensee becomes aware of any circumstances that are contrary to this acknowledgment.
- Government Users. If Licensee is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Licensee acknowledges that the Service constitute “commercial computer software“ and “commercial computer software documentation“ as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Service shall be as provided in this Agreement, except that, for U.S. Department of Defense Users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
- Publicity. Unless otherwise specified in the applicable Order, CircleCI may use Licensee’s name, logo and marks to identify Licensee as a CircleCI Licensee on CircleCI’s website and other marketing materials.
- Execution. This Agreement and any Order may be signed electronically and in counterparts, in which case each signed copy shall be deemed an original as though both signatures appeared on the same document.
- Severability. If any provision of this Agreement or any Order shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement and any applicable Order shall otherwise remain in full force and effect and enforceable.
- Waiver. A Party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise.
- Entire Agreement. This Agreement, together with all applicable Orders (including any other terms referenced in any of those documents), comprises the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter. This Agreement may only be modified by written, mutual agreement of the Parties.
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