CloudBees Evaluation Agreement

CLOUDBEES PROVIDES THE PRODUCTS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS CLOUDBEES EVALUATION AGREEMENT (“AGREEMENT”) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE BOX TO ACCEPT THIS AGREEMENT, COMPLETING AN ORDER, EXECUTING AN ORDER FORM OR USING THE PRODUCTS, CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLOUDBEES WILL NOT AND DOES NOT LICENSE THE PRODUCTS TO CUSTOMER AND CUSTOMER MUST NOT ACCESS OR USE THE PRODUCTS OR DOCUMENTATION. If Customer is located in North America, Central America, or South America, the contracting entity “CloudBees” herein refers to CloudBees, Inc., a Delaware corporation located at 16692 Coastal Highway, Lewes, DE 19958. If Customer is located anywhere else in the world, the contracting entity “CloudBees” herein refers to CloudBees International, SA, a Swiss company located at Rue des Beaux-Arts 8, CH-2000 Neuchâtel, Switzerland. CloudBees licenses the Products either set forth in an order form executed by CloudBees and Customer or by an order submitted by the Customer via the CloudBees website, as applicable (each, an “Order”).

  1. Definitions. Capitalized terms shall have the meaning defined herein.

    Documentation means the product documentation made available by CloudBees on the CloudBees website at https://docs.cloudbees.com.

    Product(s) means the CloudBees products licensed by CloudBees to Customer, as applicable.

    SaaS Products means software-as-a-service Products identified in an Order. SaaS Products include but are not limited to CloudBees Feature Flags (CloudBees-hosted version), Codeship or Devoptics.

    Use means, for Products identified on an Order as "on-premises," to install, execute, and display the Products, and for Products identified on an Order as a SaaS Product, to access and execute the Products.

  2. Grant of License. Subject to the terms of this Agreement, CloudBees grants to Customer a personal, non-exclusive, non-transferable, non-sublicensable, limited, internal license to Use the Products and Documentation on computers owned or leased by Customer for a time-limited period, determined solely by CloudBees (“Evaluation Period”), solely to evaluate the features, functionality and performance of the Products and Documentation, but only in accordance with (i) the Documentation and (ii) this Agreement. This Evaluation License is strictly limited to internal evaluation and testing or other non-production purposes only. Any other use of Products is prohibited. CloudBees may require the installation of specific CloudBees’ solutions as a condition of Customer’s Use of the Products. At the end of the Evaluation Period, the Products may cease to function. CloudBees does not provide any support or subscription services for the Products under the Evaluation. Customer has no rights to any updates, upgrades or extensions or enhancements to the Products developed by CloudBees, unless it separately purchases CloudBees subscription services. The term of this Agreement will begin on the date of Customer’s acceptance of this Agreement and end on the last day of the Evaluation Period. Unless stated otherwise on the specific Evaluation License registration form completed to get access to Customer’s Evaluation License, the default term duration is fourteen (14) days. This Agreement may be terminated at any time by either party upon written notice to the other party. Upon termination or expiration of this Agreement, Customer will cease all use of the Products and Documentation and, upon CloudBees’ request, certify to CloudBees that the Products and Documentation are no longer in use by or on behalf of Customer. Termination will not affect any claim, liability or right arising prior to termination.

  3. WARRANTY DISCLAIMER. THE PRODUCTS ARE PROVIDED "AS IS." CLOUDBEES DOES NOT WARRANT THAT THE PRODUCTS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE PRODUCTS ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. CLOUDBEES DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

  4. LIMITATION OF REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR GOODWILL) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

  5. LIMITATION OF LIABILITY. CLOUDBEES' TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY CLOUDBEES IN AN AMOUNT NOT TO EXCEED ONE THOUSAND ($1,000) DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND CLOUDBEES. CLOUDBEES' FEES FOR THE LICENSE REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

  6. STATUTE OF LIMITATIONS; JURY WAIVER. NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE PRODUCTS PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. BOTH PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.

  7. Compliance with Laws. Customer agrees that Customer’s Use of the Products will comply with all applicable laws. Customer represents and warrants that Customer is not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). Customer further certifies that Customer will not, directly or indirectly, export, re-export, transfer or otherwise use the Products (nor any direct product thereof) in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for nuclear, chemical, missile or biological weapons related end uses.

  8. Entire Agreement. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the Products. No supplement, modification, or amendment of the terms of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.

  9. CloudBees, Inc. Governing Law, Venue, and Arbitration. This paragraph shall apply only if CloudBees, Inc. is the contracting party: This Agreement shall be governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). Any controversy or claim arising out of or relating to this Agreement shall be determined by final and binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures or its Streamlined Arbitration Rules & Procedures ("Rules"). The award rendered by the arbitrator shall be final, non-reviewable, non-appealable, and binding on the parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the JAMS in accordance with its Rules. The seat or place of arbitration shall be Richmond, Virginia. The arbitration shall be conducted, and the award shall be rendered, in the English language. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award damages exceeding the amount identified in Section 5 of this Agreement, Limitation of Liability.

  10. CloudBees International, SA Governing Law, Venue, and Arbitration. This paragraph shall apply only if CloudBees International, SA is the contracting party: This Agreement shall be governed by the laws of Switzerland without regard to conflicts of laws provisions thereof. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by a single arbitrator appointed in accordance with said Rules. The Emergency Arbitrator Provisions shall not apply. The arbitration shall be conducted in Zurich, Switzerland. The arbitration shall be conducted in English. Notwithstanding the above, the parties may agree at any time to submit the dispute to nonbinding mediation in accordance with the ICC Rules of Mediation.

Last updated: June 18, 2020