CloudBees Self-Managed Software Subscription Agreement

CLOUDBEES PROVIDES THE PRODUCTS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS SOFTWARE SUBSCRIPTION 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 provides the Products on a subscription basis (each, a "Subscription"). The term of each Subscription (each, a "Subscription Term") is set at the time of Customer’s purchase of a Product license either by 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”). If applicable to the Order, as part of each Subscription, CloudBees provides the support services described at https://www.cloudbees.com/r/supportterms. Notwithstanding the foregoing, if the Products are being licensed to Customer pursuant to a “Trial” or “Evaluation” license (“Evaluation License”), Section 10 of this Agreement governs the term of such license and acceptance of this Agreement by Customer.

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

    Customer, means the individual, company, institution, government agency or other entity identified in an Order.

    Customer Data, means all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User through the Products.

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

    Intellectual Property Rights, means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future.

    Monthly Active User (or "MAU"), is counted the first time in each calendar month that an End User’s device opens Customer’s or Customer’s Affiliates’ web and/or native application(s) in which the CloudBees Rollout SDK has been incorporated (“Customer Application”) is the Monthly Active User count of the applications using CloudBees Rollout. For example, if one End User is using Customer Application on four (4) separate devices, that constitutes four MAUs.

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

    SaaS Products, means software-as-a-service Products identified in an Order. SaaS Products include but are not limited to CloudBees Rollout, Codeship or Devoptics.

    Third Party, means any third party (i) to which Customer provides access to Customer’s SaaS Product accounts or (ii) for which Customer uses the Products to collect information on the third party’s behalf.

    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.

    User, means an individual authorized by Customer to log into and use the CloudBees subscribed Products directly or an individual authorized by Customer to perform code commits into a source control management system triggering jobs in or reporting results through CloudBees Products.

  2. Grant of License. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, CloudBees grants to Customer a non-transferable, non-sublicensable, non-exclusive, limited license to Use the applicable Products as set forth in the Order and for Customer’s employees to Use the Products for Customer’s own internal use, but only in accordance with (i) the Documentation, (ii) this Agreement, and (iii) the Subscription Term and other restrictions identified in the Order. The length of the Subscription Term shall be designated on the Order. Customer acknowledges and agrees that, as between CloudBees and Customer, CloudBees owns all right, title, and interest, including all Intellectual Property Rights, in and to the Products and Documentation, and CloudBees shall, notwithstanding any other term of this Agreement, remain the owner of the Products and Documentation. Unless otherwise expressly provided in this Agreement, Customer shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the Products or Documentation. All rights not expressly granted by CloudBees herein are reserved.

  3. License Restrictions. Customer shall not, on its own or through any parent, subsidiary, Affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Products or the Documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage others to do so; (c) allow access to or permit use of the Products by any users other than Users, or any use which violates the technical restrictions of the Products, any additional licensing terms provided by CloudBees via Documentation, notification, and/or policy change posted at https://www.cloudbees.com, or the terms of this Agreement; (d) use the Products to develop, test, host or run and operate applications on behalf of third-parties, without CloudBees' written consent; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Products; (f) use the Products to provide third-party training; or (g) modify or create derivative works based upon the Products. Customer agrees not to use or permit use of the Products to display, store, process or transmit any Customer Data that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any content that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute bulk e-mail, "junk mail," "spam" or chain letters; (v) constitute an infringement of Intellectual Property Rights or other proprietary rights; or (vi) otherwise violate applicable laws, ordinances or regulations. In the event that CloudBees suspects any breach of the restrictions set forth in this Section 3, including without limitation by Users, CloudBees reserves the right to suspend access to the Products without advance notice, in addition to any other remedies CloudBees may have at law or equity.

  4. Products Member Account, Password and Security. To register for the SaaS Products, Customer must complete the registration process by providing CloudBees with current, complete, and accurate information as prompted by the registration form, including Customer’s e-mail address (username) and password. Customer will protect its passwords and license files and take full responsibility for its own use, and third party use, of Customer’s Products accounts. Customer is solely responsible for any and all activities that occur under Customer’s SaaS Product accounts. Notwithstanding the foregoing, Customer is not liable or responsible to CloudBees for any activities occurring outside of Customer’s control under any Customer’s SaaS Product accounts: (a) after Customer notifies CloudBees, or CloudBees otherwise becomes aware that, such account has been compromised; (b) after Customer notifies CloudBees that such account should be disabled or terminated; or (c) if such use is by an unauthorized person who obtained access to the account as a result of CloudBees’ knowledge or custody of such account access credentials or as a result of a breach of the security of the SaaS Product not due to Customer’s breach of this Agreement. CloudBees' (or its wholly-owned subsidiaries') support staff may, from time to time, log in to the SaaS Products under Customer’s password in order to maintain or improve service, including to provide Customer assistance with technical or billing issues.

  5. Payment Terms. Customer agrees to pay CloudBees all fees specified in the Order. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants CloudBees the right to charge the credit card or debit the bank account provided to CloudBees for all fees incurred under this Agreement. All payments are non-refundable. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to CloudBees hereunder, Customer agrees to gross up payments actually made such that CloudBees shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy. Payments will be made without right of set-off or chargeback. If payment of any fee is overdue, CloudBees may suspend provision of the CloudBees Products and Support until such delinquency is corrected.

  6. Confidentiality Obligations. Each party agrees that during the course of this Agreement, information that is confidential or of a proprietary nature may be disclosed to the other party, including, but not limited to software and technical processes, practices or designs ("Confidential Information"). Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Neither party will use or disclose Confidential Information for purposes other than the activities contemplated by this Agreement or except as required by law, court process or pursuant to the lawful requirement of a governmental agency, or if the party is advised by counsel that it may incur liability for failure to make a disclosure, or except at the request or with the written consent of the other party. Each party’s obligations under this clause shall survive for a period of three (3) years following the expiration or termination of this Agreement.

  7. Customer Data. CloudBees acknowledges that, as between CloudBees and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. For SaaS Products, Customer hereby grants to CloudBees a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data as may be necessary for CloudBees to provide the Products to Customer. All rights not expressly granted by Customer herein are reserved. Customer represents that it has the right to grant CloudBees the rights set forth in this Section 7 and it owns all right, title and interest, or possess sufficient license rights, in and to the Customer Data to permit the use contemplated under this Agreement.

  8. Excluded Data. Customer shall not provide CloudBees with any Customer Data that is subject to heightened security requirements by law or regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA) , the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), Health Insurance Portability and Accountability Act (HIPAA), the California Consumer Privacy Act (CCPA), and their international equivalents (such Customer Data collectively, “Excluded Data”). CloudBees shall have no responsibility or liability for the Excluded Data.

  9. Third Parties. Customer shall not use the Products on behalf of a Third Party. This Agreement benefits solely CloudBees and Customer, and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person or party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

  10. Evaluation of Trial License. THIS SECTION 10 OF THIS AGREEMENT APPLIES TO EVALUATION LICENSES OF THE PRODUCTS ONLY AND SUPERSEDES ANY CONFLICTING PROVISIONS OF THIS AGREEMENT AS APPLIED TO SUCH EVALUATION LICENSES. BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE EVALUATION LICENSE REGISTRATION PROCESS OR USING THE PRODUCTS, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTED THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THIS SECTION 10. 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 pursuant to this Section 10 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 thirty (30) 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.

  11. Termination. This Agreement and the licenses and access granted hereunder may be terminated by either party upon written notice if the other party has materially breached this Agreement and failed to cure such breach within thirty (30) days written notice from the non-breaching party.

  12. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SUPPORT ARE PROVIDED "AS IS." CLOUDBEES DOES NOT WARRANT THAT THE PRODUCTS AND SUPPORT 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.

  13. 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.

  14. 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 THE AMOUNT PAID BY CUSTOMER TO CLOUDBEES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE CLAUSE OF ACTION ARISES. The provisions of this Section allocate risks under this Agreement between Customer and CloudBees. CloudBees' fees for the Subscriptions reflect this allocation of risks and limitation of liability.

  15. STATUTE OF LIMITATIONS; JURY WAIVER. NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE SUBSCRIPTIONS OR SUPPORT 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.

  16. 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 any nuclear, chemical, missile or biological weapons related end uses. CloudBees shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.

  17. Amendments; Waivers. 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. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

  18. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the Products subscription, unless such terms and conditions are expressly stated as an amendment to this Agreement and duly signed on behalf of both parties.

  19. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, epidemic, pandemic, act of terrorism, riot, natural disaster, epidemic, pandemic, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.

  20. Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably delayed, conditioned or withheld, and any such assignment in violation of this Section shall be void, except that CloudBees’ transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their permitted successors and permitted assigns.

  21. CloudBees, Inc. Govering 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 14 of this Agreement, Limitation of Liability.

  22. 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.

  23. Survival. Sections 12 (Warranty Disclaimer), 13 (Limitation of Remedies), 14 (Limitation of Liability), 15 (Statute of Limitations; Jury Waiver), and, as applicable, Section 21 (CloudBees, Inc. Governing Law, Venue, and Arbitration) or Section 22 (CloudBees International, SA Governing Law, Venue, and Arbitration), shall survive any termination or expiration of this Agreement.