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Codecov Enterprise LICENSE AND SUPPORT AGREEMENT

Welcome to the Software License and Support Agreement (the "Agreement").

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW), UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE'RE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING "I ACCEPT" BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON'T HAVE SUCH AUTHORITY, OR IF YOU DON'T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, OR USE IT.

  1. Definitions. Here are some definitions we use in this Agreement. If you see a capitalized word that isn't listed here, it will be defined somewhere in the Agreement. (Unless it's the first word in a sentence, of course.)

  • The "Agreement Effective Date" is the earlier of the date that you either click "Deploy to Heroku", or clone the repository, or that you first place an order for the Software.

  • "Documentation" means any manuals, documentation and other supporting materials related to the Software that we generally provide to our customers. Documentation is considered part of the Software.

  • "Fees" means the fees you're required to pay us to use the Software during the applicable License Term, as such fees are reflected on each applicable Order Form.

  • "License Key" means a data file utilized by the Software's access control mechanism that allows you to use the Software during the License Term.

  • "License Term" means one (1) year from the applicable Order Effective Date.

  • The "Order Form" is a written or electronic form that you'll use to order Software (or that we'll use to order Software on your behalf, once we've gotten your authorization). Each Order Form will be subject to the terms and conditions of this Agreement.

  • The "Order Effective Date" is the effective date of each Order Form.

  • "Software" means the object-code version of our proprietary enterprise software application. Software includes any applicable Documentation, as well as any Updates to the Software that we provide you or that you can access under this Agreement.

  • An "Update" is a Software release that we make generally available to our customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix, generally indicated by a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.x.y); or it may be an enhancement, new feature, 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).

  • A "User" is a single person or machine account that initiates the execution of the Software and/or interacts with or directs the Software in the performance of its functions.

  1. License Grant. Subject to your compliance with the terms of this Agreement (including, among other things, paying the Fees you owe us), we hereby grant you a non-exclusive, non-transferable, limited-term license to install, execute, and use the Software for your internal business purposes during the applicable License Term, in accordance with the Documentation. You can make one copy of the Software for backup purposes only, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the Software.

  2. Restrictions. We license the Software to you – we don't sell it. As between us, we own all right, title and interest in and to the Software, and any intellectual property rights associated with it and with our company. We reserve all rights in and to the Software that we don't expressly grant you in this Agreement. You agree not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to access the Software; (iv) hack or modify the License Key, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; (viii) otherwise use or copy the Software in a manner not expressly permitted by this Agreement; or (ix) use any Software that we license to you beyond its applicable License Term.

  3. Delivery, Installation, and Training. Promptly after the applicable Order Effective Date, we'll make the Software and the License Key available for you to download on a secure, password-protected website. As Updates become available, we'll make those available for you to download on the same website. You're responsible for maintaining the confidentiality of all of your usernames and passwords, including the ones you use to download the Software. Take good care of them, because you agree that you'll be responsible for any activity that takes place using your usernames and passwords (whether you knew about it or not). Installation of the Software and any Updates are your responsibility unless you are running on our HEROKU Supported product, but we're happy to help you out if you need support.

  4. Term and Termination.

  • 5.1 Term. This Agreement starts on the Agreement Effective Date and will continue in effect for one (1) year (the "Initial Term"), at which time it will automatically renew for additional one (1) year terms (each, a "Renewal Term") until this Agreement is either terminated by a party or expires in accordance with this Section 5. Some time before the end of the Initial Term and each Renewal Term, we'll send you a notice so you know that it's time to renew your Software license for another year-long License Term. If you want to renew, let us know. We'll generate a new Order Form for you, and make a new License Key available for you to download that will let you use the Software for another year-long License Term.

  • 5.2 Termination for Convenience; Automatic Expiration. You can terminate this Agreement whenever you want – just send us written notice, or, in the case of a renewal, just let us know that your intention is to no longer use the Software. We can terminate this Agreement for our convenience at the end of the Initial Term or any Renewal Term by providing written notice to you at least thirty (30) days before the end of the Initial Term or any Renewal Term. This Agreement will automatically expire without the requirement of notice if, at the end of the Initial Term or any Renewal Term, you decide not to pay the Fees required to renew your License Term.

  • 5.3 Termination for Breach. We can terminate this Agreement immediately upon notice to you if you breach any part of it, and you fail to cure the breach within twenty days of us notifying you of it. That said, there are certain kinds of breaches that we take much more seriously, and that can really damage us. We therefore reserve the right to terminate this Agreement immediately upon written notice to you, but without giving you a cure period, if you breach any of the terms of this Agreement relating to our intellectual property (including your compliance with the license grant and any license restrictions) or our Confidential Information (defined below).

  • 5.4 Effect of Termination. When this Agreement terminates or expires: (i) the License Term for any Software in your possession will immediately end; (ii) you'll no longer have the right to use the Software, and any licenses we grant you in this Agreement will automatically cease to exist as of the date of termination/expiration; (iii) if you owed us any money prior to termination/expiration, you'll need to pay us all that money immediately; (iv) you'll destroy all copies of the Software in your possession or control, and certify in writing to us that you've done so; and (v) each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other. We encourage you to keep copies of your data outside of the Software itself, because if the Software gets disabled, you won't have access to the data you've stored there (and we won't be liable to you if that happens). Sections 1, 3, 5.2, 5.3, 5.4, 7, 8.2, and 9-13 will survive the termination or expiration of this Agreement for any reason.

  1. Support.

  • 6.1 Support Times. Provided that you've paid us the Fees you owe us, we'll provide you with technical support for the Software from 9am to 5pm Central Starndard Time , Monday through Friday, excluding national U.S. holidays. We currently only offer support via email (write to us at enterprise@codecov.io) or web-based ticketing (through https://github.com/codecov/enterprise/issues). You can contact our amazing support team to help answer your questions on installing and using the Software, identifying and verifying the causes of suspected errors in the Software, and helping you find workarounds for Software malfunctions. Though we'll do our best to respond to automated support requests, we typically need more information than an automated ticketing system can give us to solve your issue. Whenever possible, please initiate any support requests from a person or machine that our support team can interact with.

  • 6.2 Updates. We'll make Updates available to you as we make them generally available to our other customers. They'll be available on the same secure website where you downloaded the Software and the License Key.

  • 6.3 Exclusions. We might not be able to correct every problem we find, but we'll use our reasonable efforts to correct any material, reproducible errors in the Software that you make us aware of. We might ask for your help in reproducing the error for us. Please - don't do things with our Software that would make it harder for us to help you. We won't be responsible for supporting you in those circumstances, which include, among other things: (i) someone (other than us) modifying the Software; (ii) changing your operating system or environment in a way that adversely affects the Software or its performance; (iii) using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or (iv) accident, negligence, or misuse of the Software. We're only required to support a given version of the Software for a year from the date of its commercial release, or six months from the commercial release of the next Update, whichever is longer. If you want support for earlier versions of the Software, we'll try to help you if we can, but you'll need to pay us for that help at our then-current rates.

  1. Payment. You agree to pay the Fees to us in full, without deduction or setoff of any kind, in U.S. Dollars (unless the Order Form says otherwise), within 30 days of the date of the invoice we send you related to the applicable Order Form. Amounts payable under this Agreement are nonrefundable, except as provided in Section 8.1. If you don't pay us on time, we reserve the right, in addition to taking any other action that we see fit, to charge you interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to additionally charge all expenses of recovery. You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Codecov's net income) that are imposed or become due in connection with the subject matter of this Agreement.

  2. Limited Warranties

  • 8.1 Limited Warranties. We offer you (and only you) the following limited warranties: (i) that the unmodified Software, at the time we make it available to you for download, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm your software, hardware, computer system, or network); (ii) that, for thirty (30) days from the date the services were performed, any services we perform for you under this Agreement will be performed in a good and workmanlike manner by appropriately qualified personnel; and (iii) that, for ninety (90) days from the date the Software is made available for download, the unmodified Software will substantially conform to its Documentation. We don't warrant that your use of the Software will be uninterrupted, or that the operation of the Software will be error-free. Our only obligation, and your only remedy, for any breach of these limited warranties will be, at our option and expense, to either (i) repair the Software; (ii) replace the Software; or (iii) terminate this Agreement with respect to the defective Software, and refund the Fees you've paid for the defective Software during the then-current License Term once you've returned it to us (or destroyed it). These limited warranties won't apply if you modify the Software, or if you use the Software in any way that isn't expressly permitted by this Agreement and the Documentation.

  • 8.2 Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH RESPECT TO THE SOFTWARE AND OUR TECHNICAL SUPPORT. WE DON'T MAKE ANY OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

  1. LIMITATION OF LIABILITY.

  • 9.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE'VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  • 9.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU'VE ACTUALLY PAID US DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

  • 9.3 Basis of Bargain. You understand and agree that we've set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in this Agreement, which allocate risk between us and form the basis of a bargain between the parties.

  1. Indemnification.

  • 10.1 Our Indemnification Obligation. We'll defend or settle, at our option and expense, any third-party claim brought against you to the extent that it's based on an allegation that your use or possession of the Software as permitted under this Agreement infringes a copyright or misappropriates a trade secret of any third party (each, a "Claim"), and, subject to Section 9, we'll pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such a Claim, provided that you notify us in writing of any such Claim as soon as reasonably practicable and allow us to control, and reasonably cooperate with us in the defense of, any such Claim and related settlement negotiations.

  • 10.2 Exclusions. You understand that we'll have no obligation to indemnify you for any Claim that's based on (i) the modification of the Software, unless we were the ones who made the modifications; (ii) your use of the Software other than as authorized by this Agreement and the Documentation; (iii) your failure to use updated or modified Software that we make available to you that would have helped avoid or mitigate the Claim; (iv) your failure to stop using the Software after receiving written notice to do so from us in order to avoid further infringement or misappropriation; or (v) the combination, operation or use of the Software with equipment, devices, software, systems, or data that we didn't supply (subparts (i)-(v) may be referred to collectively as "Indemnity Exclusions").

  • 10.3 Right to Ameliorate Damages. If your use of the Software is, or in our reasonable opinion is likely to be, subject to a Claim under Section 10.1, we may, at our sole option and at no charge to you (and in addition to our indemnity obligation to you in Section 10.1): (i) procure for you the right to continue using the Software; (ii) replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or (iii) if options (i) and (ii) above are not commercially practicable in our reasonable estimation, we can terminate this Agreement and all licenses granted hereunder (in which event, you will immediately stop using the Software) and refund the Fees that you paid us for the then-current License Term.

  • 10.4 Sole Remedy. THIS SECTION 10 SETS FORTH OUR SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

  • 10.5 Your Indemnification Obligation. Because fair is fair (and we can't know what you're doing with the Software behind your firewall), except to the extent that we're obliged to indemnify you in Section 10.1 above, you will defend, indemnify, and hold us harmless from and against any claims that may arise out of or be related to or connected with your use of the Software (including, without limitation, any Indemnity Exclusion).

  1. Confidentiality.

  • 11.1 Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of this Agreement, the Software and Documentation, and any copies of them, will be deemed to be Codecov's Confidential Information, regardless of whether they are marked as such.

  • 11.2 Restrictions on Use and Disclosure. Neither of us will use the other party's Confidential Information, except as permitted under this Agreement. Each of us agrees to maintain in confidence and protect the other party's Confidential Information using at least the same degree of care as we use for its own information of a similar nature, but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, "Representatives") (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 11, and (iii) who are informed of the nondisclosure obligations imposed by this Section 11. Each of us will be responsible for all acts and omissions of our Representatives. The foregoing obligations won't restrict either of us from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 11 shall remain in effect during the term of this Agreement, and for five (5) years thereafter.

  • 11.3 Exclusions. The restrictions set forth in Section 11.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party's Confidential Information.

  1. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the parties irrevocably consent to the personal jurisdiction and venue there.

  2. Miscellaneous.

  • 13.1 Assignment. You aren't allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void.

  • 13.2 Severability. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.

  • 13.3 Notices. Any notice, request, demand or other communication required or permitted under this Agreement should be in writing (e-mail counts), should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth on the Invoice, unless we notify each other that those addresses have changed.

  • 13.4 Waiver. A party's obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

  • 13.5 Force Majeure. Codecov will be excused from performing under this Agreement to the extent that we're unable to perform due extraordinary causes beyond our reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.

  • 13.6 Independent Contractors. We're each independent contractors with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.

  • 13.7 Amendments. Entire Agreement. No modification, change, or amendment of this Agreement will be binding upon the parties, unless we both agree to the change in a writing signed by each of our authorized representatives. This Agreement, including each Order Form, constitutes the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.

  • 13.8 No Other Terms. Sometimes your accounting folks will send us purchase orders with lots of itty bitty language attached that requires a microscope for us to read. Everybody does it – we understand. But this Agreement is the only agreement between us, and the terms of any purchase order, written terms or conditions, or other document that you submit to us that contain terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected by Codecov, and will be void and of no effect.

  • 13.9 Publicity. Upon your review and approval, you give us permission to reference your name in case studies or other Codecov marketing materials.

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