Software as a Service Agreement
Last Updated: December 20, 2023
Thank you for your interest in using our services!
You must be at least eighteen (18) years old to use the Services.
When you click ‘I Agree/I Accept/Sign Up/Pay Now’ (or similar button or checkbox) when registering for the Services, you are accepting this Agreement on behalf of your employer, another entity, or yourself, as applicable, and represent and warrant that: (i) you have full legal authority to bind your employer, such other entity, or yourself, as applicable, to the terms of this Agreement; (ii) you have read and understand the terms of this Agreement; and (iii) you agree to the terms of this Agreement on behalf of your employer, an entity that you represent, or yourself, as applicable.
PLEASE NOTE THAT IF YOU REGISTER FOR THE SERVICES USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU SHALL BE DEEMED TO REPRESENT SUCH PARTY, AND (B) YOUR CLICK TO ‘AGREE/ACCEPT/SIGN UP/PAY NOW’ (OR SIMILAR BUTTON OR CHECKBOX) WILL BIND YOUR EMPLOYER OR THE OTHER ENTITY TO THIS AGREEMENT.
This Agreement is effective as of the earliest of (i) the date you first complete registration for the Services by clicking ‘I Agree/I Accept/Sign Up/Pay Now’ (or similar button or checkbox), (ii) access the Services, or (iii) the effective date set forth on the initial Order (the ‘Effective Date’). For Evaluations, you also indicate your acceptance of the terms of this Agreement by your accessing or using the applicable Evaluation(s). This Agreement does not have to be signed in order to be binding.
Your right to access the Services, whether or not an Order has been signed between you and us, is expressly conditioned on your acceptance of this Agreement.
If you do not agree with the terms of this Agreement, or you don’t have the legal authority to bind your employer or another entity, do not click ‘I Agree/I Accept/Sign Up/Pay Now’ (or similar button or checkbox) when presented to you. In this case, you may not use the Services.
Definitions Used in this Agreement.
- ‘Affiliate’ means a company, corporation 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. When your Affiliate enters into an Order hereunder, it agrees to be bound by the terms of this Agreement as if it were you.
- ‘AUP’ means our standard Acceptable Use Policy, currently available at https://circleci.com/legal/acceptable-use/ or any successor URL.
- ‘California Privacy Law’ means the California Consumer Privacy Act of 2018 (CCPA) and any regulations promulgated thereunder, as amended by the California Privacy Rights Act of 2020 (CPRA).
- ‘California User Data’ means the personal information of consumers in California provided or made available by you to CircleCI.
- ‘CircleCI Content’ means source code, configurations, data, Documentation, reports, text, images, sounds, video, and content we make available to you under this Agreement.
- ‘Confidential Information’ means any technical, financial, business or other information provided by one Party to the other Party (including the terms of this Agreement), 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.
- ‘Copyright Infringement Notice and Takedown Policy’ means our Copyright Infringement Notice and Takedown Policy located at https://circleci.com/legal/copyright-infringement-policy/ or any successor URL.
- ‘Disclosing Party’ means the party that provides Confidential Information to the other Party.
- ‘Documentation’ means any manuals, instructions or other documents or materials that we make available to you in any form or medium, that describe the functionality, components, features or requirements of the Services 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.
- ‘Equipment’ means any and all hardware, servers, software, operating systems, networking, web servers, internet and telecommunications service(s) and ancillary services needed to connect to, access or otherwise use the Services.
- ‘Fees’ means the amount we charge you for the Services and Support, the payment terms of which are outlined on an Order. Fees are payable in US Dollars via ACH or credit card.
- ‘Feedback’ means any suggestion, idea, improvement, enhancement request, recommendation, correction or other feedback voluntarily provided by you or any User to us relating to the operation of the Services. We may, without restriction and in our sole discretion, utilize Feedback to design, debug, display, perform, copy, make, have made, use, sell, and otherwise dispose of in any manner that we may choose without remuneration or accreditation to you. Feedback does not include your Confidential Information, software code or trade secrets.
- ‘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.
- ‘Non-CircleCI Applications’ means any internet-based or offline software application, such as a version control system, that is provided by you or a third party and interoperates with the Services.
- ‘Order’ means an order form or other ordering document, including any exhibits and Supplemental Terms as applicable, provided by us and entered into between the Parties and/or their respective Affiliate(s). An Order may be provided electronically or on your account page on our website, specifying the chosen Services and Support, and associated Fees and payment terms. For avoidance of doubt, if you use a purchase order system, the terms of the Order and Agreement take precedence over any conflicting terms of your purchase order.
- ‘Personal Data’ means information that, alone or in combination with other information, could be used to identify a User.
- ‘Privacy Laws’ means all laws and regulations regarding data privacy and transmission of Personal Data that apply to our provision of the Services to you (e.g., storing and processing Your Data), 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), as amended by the California Privacy Rights Act of 2020 (CPRA).
- ‘Receiving Party’ means the Party that receives Confidential Information from the other Party.
- ‘Resource Class Page’ means the publicly available web page where we publish Credit expenditure schedules for the Services, currently available at https://circleci.com/product/features/resource-classes/ or any successor URL.
- ‘Self-Hosted Applications’ means optional hybrid applications that provide additional functionality and are downloaded, installed and used on servers in your environment, but interact with our Services through an internet connection.
- ‘Services’ means our continuous integration/continuous deployment software-as-a-service offering, Self-Hosted Applications, and any other software, including downloadable software, and related technologies that may be made available by us to interoperate with the foregoing.
- ‘Specifications’ means the description of, minimum standards required, and the mode, means and mechanisms of action or functionality for the Services set forth in the Documentation.
- ‘Supplemental Terms’ means additional terms that apply to certain Services, including any product-specific terms that may be agreed by the Parties.
- ‘Support’ means free or paid ticket-based help with the Services.
- ‘Taxes’ means 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. Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes.
- ‘Term’ means the period during which you have agreed to subscribe to the Services.
- ‘Third-Party Content’ means information and data obtained by CircleCI from publicly available sources or our third-party content providers and made available to you and its Users through the Services, Evaluations or pursuant to an Order.
- ‘Updates’ means upgrades, new features, bug fixes, patches, and/or other error corrections to the software that CircleCI makes from time to time in its sole discretion. Updates are subject to the terms of this Agreement upon release.
- ‘Usage Data’ means metrics and data relating to a User’s access to the Services, which may include configuration files, build logs, error logs and other similar materials. Usage Data, when combined with other data, is an original CircleCI compilation pursuant to the copyright laws of the United States and other jurisdictions, of which we have dedicated substantial resources to collecting, managing, and compiling. Except as described herein, Usage Data does not include your Confidential Information, software code or trade secrets.
- ‘User’ means an individual who is authorized by you to use the Services. Users may include, for example, your and your Affiliate’s employees, consultants, contractors, representatives and/or agents.
- ‘Your Data’ means any data, software code, your Confidential Information, or other information received by the Services from you, your Users or third parties, in the course of access to the Services, excluding CircleCI Content, Usage Data, Third-Party Content and Non-CircleCI Applications.
- Your Acceptance of the Terms of this Agreement and any Changes to It. By entering into an Order or otherwise downloading, accessing or using the Services, you unconditionally accept and agree to all of the terms of this Agreement. This Agreement shall apply to all usage by you and each of your User(s) of the Services. We may modify this Agreement at any time by posting a revised version at https://circleci.com/terms-of-service/, and the revised version will become effective on the day it is published; provided, however, that if an Order specifies a fixed term of twelve (12) months or longer, the modifications will instead be effective immediately upon the start of the next renewal Term, if applicable. In either case, if any change to this Agreement is not acceptable to you, as your sole and exclusive remedy, you may choose not to renew, including canceling the auto-renewal of any Terms, in accordance with the terms set forth in Section 9. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
- 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, we may invite you to try certain features or products at no charge for a limited evaluation period, which may be designated or identified as beta, pilot, evaluation, trial or the like [collectively, ‘Evaluation(s)’). Your agreement to participate in an Evaluation is completely voluntary, and if you initially opt into an Evaluation, you may opt out at any time in writing. If you opt out of an Evaluation that you had originally opted in, your access to such Evaluation will be terminated. Notwithstanding anything to the contrary contained in this Agreement, Evaluations are licensed for your internal evaluation purposes only, and not for production use. Unless otherwise stated in an Order, an Evaluation is limited to thirty (30) days. Notwithstanding the foregoing, we may discontinue any Evaluation program in whole or in part at any time in our sole discretion and we reserve the right to decide whether to make features provided in an Evaluation generally available. DUE TO THE NATURE OF EVALUATIONS AND THEIR VOLUNTARY PARTICIPATION, EVALUATIONS ARE EXCLUDED FROM OUR REMEDIES UNDER SECTIONS 10, 11 AND 12, UNLESS SUCH EXCLUSION IS NOT ENFORCEABLE UNDER APPLICABLE LAW. IF LIABILITY EXCLUSION IS NOT ENFORCABLE UNDER APPLICABLE LAW, OUR LIABILITY ARISING UNDER CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY WITH RESPECT TO THE EVALUATION SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
- As to CircleCI. We and our licensors own and retain all right, title and interest in and to the Services, CircleCI Content, Usage Data and Feedback and all associated Intellectual Property Rights therein. Except as provided in Section 6(a) below, we grant no further rights to you or your Users under this Agreement.
- As to Your Data. You own and retain all right, title and interest in and to Your Data and all associated Intellectual Property Rights therein. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data.
- License Grants; Obligations; Restrictions; Consequences.
- License Grants.
- Subject to the terms of this Agreement, each Order and Your payment of all Fees, we grant you and your Users a worldwide, non-exclusive, non-sublicensable, non-transferable right to access (and where applicable, download and install) the Services during the applicable Term.
- You grant us, our Affiliates and licensors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, non-transferable [except as specified in Section 15(b)], license to receive, host, store, analyze, process, enhance, copy, transmit, create derivative works of, maintain and display Your Data that you, or your User(s) post(s) to the Services (either directly or via a Non-CircleCI Application) solely to administer and provide the Services in accordance with this Agreement.
- If you use a Non-CircleCI Application with the Services, you grant us a license to provide the Non-CircleCI Application and our provider with access to Your Data and information about your and your Users’ usage of the Services, as appropriate, for the interoperation of that Non-CircleCI Application with the Services.
- Obligations. You shall use the Services only for lawful purposes in accordance with this Agreement as expressly licensed herein, including, without limitation, with your obligations set forth in this Section 6, the Documentation, and applicable laws and government regulations. You shall (i) be responsible for your Users’ compliance with this Agreement; (ii) be responsible for the quality and legality of Your Data and the means by which you acquired Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to the Services, and notify us promptly of any such unauthorized access to which you become aware; (iv) provide all necessary disclosures to your Users and obtain all necessary consents from such Users, in each case to the extent necessary to share such Users’ Personal Data with us and our Affiliates, licensors and service providers to use such Personal Data to provide the Services; (v) comply with the terms of service of the Non-CircleCI Applications that you use with the Services; and (vi) comply with the terms of our AUP. You shall promptly notify us of any suspected or alleged violation of this Agreement and shall cooperate with us with respect to: (1) our investigation of any suspected or alleged violation of this Agreement and (2) any action taken by CircleCI to enforce this Agreement. If we send you a notice that any Third-Party Content or a Non-CircleCI Application must be modified, disabled and/or removed from the Services to avoid violating applicable law, third-party rights, or the terms of this Agreement, you shall promptly do so. You shall confirm such modification, disablement or removal of such Third-Party Content or Non-CircleCI Application in writing upon our request, and you hereby authorize us to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. You and your Users are responsible for maintaining the security of your accounts, usernames and passwords and files, and for all uses of your and your User’s account. We shall not be liable for any loss or damage from your or any of your User’s failure to comply with this security obligation.
- Restrictions. This Agreement does not grant you any right to reproduce, modify, distribute, or publicly display or perform the software included in the Services. You must not violate the Prohibited Uses section of our AUP.
- Consequences. We may, in our sole discretion, suspend or terminate your or any of your User’s access to the Services this Agreement and any active Orders with or without advance written notice to you if we reasonably determine that you or your User has violated this Section 6. We may remove Your Data from the Services (or disable access to it) in accordance with our Copyright Infringement Notice and Takedown Policy. If you do not remove Third-Party Content or a Non-CircleCI Application upon notice from us, or if, in our judgment, continued violation is likely to reoccur, we may disable or remove the Third-Party Content and/or the Non-CircleCI Application from the Services. You will be liable for any violation of this Agreement by any of your Users. If we terminate this Agreement or an active Order in accordance with this Section, we shall do so in accordance with Section 9(b)(ii) below.
- License Grants.
- Services and Support.
- Provision of Services and Support. We shall make the Services available to you and your Users pursuant to this Agreement and the applicable Order. We will provide Support in accordance with the level chosen on any Order. Support names and associated features are included on each Order. We will use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, except for: (i) planned downtime, of which we will typically provide at least forty-eight (48) hours’ electronic notice and schedule, to the extent practicable, during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday, Pacific time, and (ii) any unavailability caused by unscheduled emergency maintenance either by us or our third-party vendors or hosting providers, or (iii) a Force Majeure event, the failure or delay of an internet service provider or Non-CircleCI Application, or any denial of service attack, for which we may or may not provide notice.
- Changes to Services and Support. You may request Services and/or Support Plan upgrades at any time. Upon receipt of such request, we will promptly make the upgrade and bill you for such upgrade, prorated for the remaining Term of your current billing cycle. We do not provide mid-term Support Plan downgrades or refunds for Credits. You may downgrade your Support Plan upon the commencement of the first renewal Term after notice of such downgrade. You acknowledge that Support Plan upgrades provide additional features and decreased response times, while Support Plan downgrades remove features and increase response times. From time to time, we may introduce new Services, or update or sunset current Services, including but not limited to business model, plan level and/or features, Credit use executor type and resource class offerings and/or Support Plans. You will be migrated to the then-current business model, plan level and/or features, Support Plan and/or features upon release of the same, or when applicable, upon renewal.
- Software Updates.
- We continuously update our cloud-based software. You access the newest software version each time you log into the Services.
- We may develop and release Updates to Self-Hosted Applications (‘SHA Updates’). We will post notices of SHA Updates on the Self-Hosted Application change log, and, if you have not agreed to automatic updates, you agree to download and install such SHA Updates promptly. You acknowledge that, once a SHA Update has been provided, older versions of Self-Hosted Applications or portions thereof may no longer operate properly. We shall have no liability for inoperability due to your delay in installing SHA Updates.
- Equipment. You are responsible for obtaining and maintaining any Equipment you need to use the Services and for ensuring that such Equipment is compatible with the Services and complies with all configurations and Specifications set forth in the Documentation. We shall have no liability to you for any damage caused to your servers resulting from your access to the Services. You are responsible for maintaining the security of the Equipment and for all uses of the Equipment.
- Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding any future functionality or features.
- Fees and Payment.
- Fees. You shall pay us the Fees set forth in each Order, under the terms set forth therein and this Agreement. Fees are charged in advance through the purchase of Credits and a Support Plan, except for Fees for overages, which are charged in arrears. Unless otherwise stated in an Order, (i) Fees for renewal Terms are subject to the then-current pricing, and (ii) you are responsible for, and will pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. If you are tax-exempt, you will supply official exemption documentation to us.
- Payments. Payment terms are described in each Order. Notwithstanding, all amounts paid or payable are non-refundable, non-cancelable and non-creditable. If any amount owing by you under this Agreement for the Services is ten (10) or more days overdue, we may, in our sole discretion and without limiting any other rights and remedies, limit or suspend your access to the Services and Support until such amounts are paid in full, or we may, in our sole discretion, terminate the account in accordance with Section 9(b) below. If we suspend, limit, or terminate the Services under this Section 8(b), we will have no liability for any resulting damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may experience. 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 the maximum rate allowed by law is less, the maximum rate allowable by law.
- Term and Termination.
- Term of Agreement and Orders. This Agreement will begin on the Effective Date and continue in effect until terminated. Each Party may terminate this Agreement with thirty (30) days’ advance written notice if all Terms of Orders for the Service have expired or are terminated in accordance with Section 9(b). The Term of each Order will be set forth therein, starting on the Effective Date of the Order and continuing for the time period specified.
- Termination; Effect of Expiration or Termination; Survival.
- Either Party may terminate any Order in accordance with its terms. 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. We may terminate any Order for cause upon written notice (1) within ten (10) days in the case of non-payment; and (2) immediately in the case of your or any of your User’s breach of Section 6(c). Upon any termination of this Agreement due to our uncured material breach of this Agreement, we will provide a refund to you 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 regardless of whether termination occurs.
- Regardless of the basis for expiration or termination of this Agreement, upon expiration or termination of an Order or this Agreement, we (1) will terminate your access to the Services, Support and CircleCI Content; and (2) shall not be obligated to retain any your Data for longer than thirty (30) days after any such expiration or termination. Thereafter, we may in our sole discretion, delete Your Data from the Services, which is unrecoverable. You shall destroy all copies of all CircleCI Content and all portions thereof in your possession and certify such destruction to us if we request such certification.
- All provisions of this Agreement which by their nature should survive expiration or termination, including without limitation, Sections 3 (Agreement Structure and Order of Precedence), 5 (Ownership), 9 (Term and Termination), 10 (Indemnification), 11 (Warranties and Disclaimer), 12 (Limitation of Liability), 13 (Confidentiality), 14 (Privacy, Security and Continuity), and 15 (Miscellaneous) 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.
- You shall defend, indemnify and hold harmless us and our Affiliates, and each of their respective officers, directors, employees and agents (the ‘CircleCI Indemnitees’) from all damages, settlements, attorneys’ fees and expenses related to any third-party claim, suit or demand from (i) an allegation that the Your Data infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law or (ii) your or your employees’ or agents’ gross negligence, willful misconduct or fraud.
- The applicable CircleCI Indemnitee will promptly notify you upon becoming aware of any and all threats, claims and proceedings related thereto, and such CircleCI Indemnitee will reasonably cooperate with you to resolve the applicable claim (at your cost). Each applicable CircleCI Indemnitee reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section 10. In such case, you agree to cooperate with any reasonable requests in assisting each applicable CircleCI Indemnitee’s defense of such matter. You shall not agree to, nor will we be responsible for, any settlement, judgment or other agreement which admits fault or incurs liability of us without our prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed.
- Warranties and Disclaimer.
- Warranties. During the Term, we warrant, for your benefit only, that (i) we have the full right and legal authority to grant licenses provided herein and bind ourselves to the terms of this Agreement; and (ii) the Services shall be provided in a professional and workmanlike manner. You represent and warrant that you: (x) have the full legal authority to bind yourself to the terms of this Agreement; and (y) own or license rights to any Equipment on which Self-Hosted Applications is installed, and you are solely responsible for the configuration, security, and maintenance of such Equipment.
- Disclaimer. EXCEPT AS PROVIDED HEREIN, THE SERVICES, EVALUATIONS, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL WE OR OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU, ANY USER OR ANY THIRD-PARTY FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES; OR (ii) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE GREATER OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR OR YOUR USER’S CLAIM OR ONE HUNDRED DOLLARS (US$100.00). YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12 IS TO ALLOCATE THE RISK UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTEES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR SOME USERS. IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Confidentiality. All Confidential Information shall be held in confidence and will not be disclosed or 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 will use 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 obligations 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 to do so by law, 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 will 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 will furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.
- Privacy, Security and Continuity.
- California Privacy Law. For clarity under this Section 14(b), the terms ‘business’, ‘business purpose’, ‘commercial purpose’, ‘consumer’, ‘personal information’, ‘sensitive personal information’, ‘sell’, ‘share’ and ‘service provider’ have the meanings set forth in the California Privacy Law. The Parties agree that we are acting as a service provider in connection with this Agreement with respect to the California User Data, and that we receive the California User Data from you pursuant to a business purpose. You represent and warrant to us that you (i) are acting as a business in connection with this Agreement with respect to the California User Data, and (ii) are sharing and making available to us the California User Data pursuant to a business purpose and in accordance with the California Privacy Law. The Parties agree to comply with their own applicable obligations under, and provide the same level of privacy protection to, California User Data as required by the California Privacy Law.
- Our Obligations. We agree not to (1) sell or share California User Data or (2) retain, use or disclose California User Data (x) for any purpose other than for the specific purpose of performing the Services or for a commercial purpose other than providing the Services, or (y) outside of the direct business relationship between us and you, including by not combining any California User Data with other personal information collected or received from another source except as otherwise permitted under the California Privacy Law.
- Your Obligations and Rights. You agree that (1) you will only disclose California User Data to us for the limited purpose of using the Services in accordance with the Agreement, and (2) you represent that the California User Data does not contain sensitive personal information. If we engage in an unauthorized use of California User Data, you may, upon reasonable notice to us, take reasonable and appropriate steps to stop and remediate the unauthorized use of the California User Data.
- Security of the Services; Protection of Your Data. We shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Your Data (other than by you or your Users). We shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Your Data that does not arise from a breach of its obligations under this Section 14(c).
- Data Transmission and Encryption. Your Data is encrypted at rest and in transit as it traverses private networks and the internet. While we maintain a Data Backup Policy that requires restoration capabilities within common industry timelines, you bear sole responsibility for adequate backup of Your Data. Except for unauthorized access due to our negligence, we shall have no liability to you for any third-party unauthorized access to any of Your Data, or any corruption, deletion, destruction or loss of any Your Data.
- Business Continuity & Disaster Recovery. Throughout the Term, we shall implement and maintain commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Your Data following any significant interruption or failure of critical business processes or systems affecting the Services.
- Governing Law; Venue; Attorney’s Fees. This Agreement is 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. The Parties (i) hereby generally, irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts in San Francisco County, California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement; (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such state and such courts; and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or 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 Services are a service, not goods, and are 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 you, the rights granted under this Agreement will 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 15(b) is void. Subject to the terms of this Section 15(b), this Agreement will 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 will be excused for the resulting period of delay or inability to perform. The affected Party must (i) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (ii) 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 is not construed a joint venture, partnership, franchise, employment, fiduciary, or agency relationship between the Parties, 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.
- Licensing the Services Through a Reseller or Marketplace. Notwithstanding anything to the contrary in this Agreement, if you purchase a license to the Services through an authorized partner, reseller or marketplace (‘Third-Party Seller’):
- You agree to be bound by the terms of this Agreement.
- We will invoice Third-Party Seller, not you. You will pay the applicable amounts to the Third-Party Seller, as agreed between you and the Third-Party Seller, and Third-Party Seller will pay us. We may suspend or terminate your rights to use the Services if we do not receive the corresponding payment from the Third-Party Seller.
- Your Order details (e.g., the Services that Third-Party Seller is purchasing on behalf of You, the Term, etc.) will be as stated in the Order that the Third-Party Seller places with us on your behalf, and the Third-Party Seller is responsible for the accuracy of any such Order as communicated to us. We will only provision the Services for you after we receive and accept the Order from the Third-Party Seller.
- If you are entitled to a refund from a Third-Party Seller, the Third-Party Seller is solely responsible for providing such refund to you. We disclaim liability for any refunds owed to you from a Third-Party Seller.
- Third-Party Sellers are not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement, unless agreed in writing by us and provided to you.
- Notices. Billing-related notices to you will be emailed to your accounts payable contact designated by you and to us at this address. We will provide platform-related notices to you by email and/or the platform. Email notices shall be deemed to have been given on the day the email is sent. Notices for material breach or an indemnifiable claim must be in writing and shall be deemed to have been given upon personal delivery or delivery confirmation by nationally or internationally recognized overnight delivery service. We will provide written notice to you at the address you provide on your Order. You will send written notices to Circle Internet Services, Inc., dba, CircleCI at 201 Spear Street, 12th Floor, San Francisco, CA 94105 USA, Attn: Chief Legal Officer, with a courtesy copy emailed here. Either Party may provide a subsequent email or physical notice address in writing to the other Party in the manner provided herein.
- Anti-Corruption. Each party shall comply with applicable laws concerning anti-bribery and anti-corruption, which includes the United States Foreign Corrupt Practices Act of 1977 as may be amended. As of the date of this Agreement and the date of each Order, you represent that you have not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value from any employees, representatives or agents of us or our Affiliates in connection with this Agreement. You shall use reasonable efforts to promptly notify us if you become aware of any circumstances that are contrary to the foregoing representation.
- Government Users. If you are a U.S. Government Agency, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR) and any applicable Agency-specific FAR Supplements, you acknowledge that the Services 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 Services shall be as provided in this Agreement, except that, for U.S. Department of Defense Customer, technical data customarily provided to the public is being furnished in accordance with DFARS 252.227-7015. The commercial computer software and commercial computer software documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only such rights as are granted to all other end-users pursuant to the terms herein. Any provisions of this Agreement inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. If a U.S. Government Agency needs additional rights, it must negotiate a mutually acceptable written specially negotiated license to be incorporated as an addendum to this Agreement that will specifically grant those rights.
- Publicity. Unless otherwise specified in the applicable Order, we may use your name, logo and marks to identify you as a customer of ours on our website and other marketing materials.
- Execution. This Agreement and any Order may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
- Severability. If any provision of this Agreement or any Order is adjudged by any court of competent jurisdiction unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement and any applicable Order will otherwise remain in full force and effect and enforceable.
- Waiver. A Party’s failure or delay in exercising any right hereunder does not operate as a waiver thereof, nor will 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.
To view the prior version of these terms, please click here.