Coveralls Enterprise License Agreement

Coveralls, LLC (we or us) offers Enterprise software to help you deliver better software, faster, by providing detailed coverage history and statistics regarding your source code's automated test suite coverage. Before you download and\/or use our enterprise software, we need you to agree to a special set of terms (the Agreement).

Please read this agreement carefully before installing or using the Software. These terms and conditions govern your use of the Software, 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" on our site, 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.

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.

The Agreement Effective Date is the earlier of the date that you either click "I Accept" to the terms and conditions of this Agreement, or that you first place an order for Software or Services.
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 both:
1. 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; and
2. the fees you're required to pay us for any Services you engage us to perform, as such fees are reflected on each applicable SOW.
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 year from the applicable Order Effective Date.
The Order Form is a written or electronic form that we'll give you to order Software (or that we'll use to order Software on your behalf, once we've gotten your authorization). Upon execution by the parties (or, in the case of an electronic order, confirmation and placement of the order), 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.
Replicated means the software distribution and management system offered by Replicated, Inc., whose website is www.replicated.com.
Seats mean the number of User accounts for the Software that you're authorized to create. The number of Seats is specified in the applicable Order Form. Only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat.
Services means training, consulting, or implementation services that we provide to you pursuant to a mutually executed SOW. Services do not include support.
Software means the object-code or obfuscated source 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.
SOW means a mutually executed statement of work detailing the Services we'll perform for you, their price, and your related obligations (if any).
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. The number of Users must not exceed the number of Seats you've licensed from us.

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, worldwide, royalty-free, limited-term license to install, execute, and use a single production instance of the Software for your internal business purposes during the applicable License Term, in accordance with the Documentation, and only for the number of Seats that you've paid for. You can make copies of the Software for non-production purposes only, provided that you reproduce all copyright and other proprietary notices that are on the original copy of the Software. Your agents and contractors can use the Software too, so long as they're using it on your behalf, and provided that you agree to be fully responsible for their behavior under this Agreement.

Restrictions

We license the Software to you. We do not sell it. 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:

sublicense, sell, rent, lease, transfer, assign, or distribute the Software to third parties;
host the Software for the benefit of third parties;
disclose or permit any third party to access the Software, except as expressly permitted in License Grant;
hack or modify the License Key, or try to avoid or change any license registration process we may implement;
modify or create derivative works of the Software, or merge the Software with other software;
disassemble, decompile, bypass any code obfuscation, 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 or applicable license notwithstanding this prohibition;
modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation;
otherwise use or copy the Software in a manner not expressly permitted by this Agreement; or
use any Software that we license to you beyond its applicable License Term.

Seats

Only one User can use a Seat at a time. Multiple Users aren't allowed to use the same Seat, and only one human being can be associated with a particular User account. If you want to swap out, delete, or suspend a User, you can do that, and then assign a new User to the open Seat. If you find that you need more Seats, submit a new request through our website or via our sales team, and pay for the additional Seats. (A new Order Form will be generated). If and when you add additional Seats to your subscription, you'll pay Fees for those seats at the then-current price, prorated for the balance of the applicable License Term. When the time comes to renew your Seats for another License Term, we'll invoice you for all of your Seats at once, at the then-current price (we reserve the right to change our prices at any time, but the new prices won't affect you until it's time to renew your license). You agree that any orders that you make (or that you authorize us to make on your behalf) for additional Seats during the term of this Agreement will be governed by this Agreement.

Verification

From time to time, we may verify that you're not using extra Seats without paying for them. You agree to cooperate with us to achieve that goal. To help us verify the number of Seats you're actually using, you agree to promptly give us any usage files and reports that your instance of the Software generates, if and when we ask for them. We might also (or instead) ask one of your officers to certify the number of Seats that you're actually using. You agree to provide such a certification if we ask for it. If we determine that you're using more Seats than you've paid for, in addition to any other remedies we might have, you agree to pay us the then-current Fees for the additional Seats you're using, starting from the date you began using each Seat.

Government Users

No technical data or computer software is developed under this Agreement. The Software and Documentation have been developed solely with private funds, and are considered "Commercial Computer Software" and "Commercial Computer Software Documentation" as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and are licensed to the to the U.S. Government end user as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Software or Documentation by the U.S. Government or its contractors is subject to the restrictions in this Agreement.

Delivery

Promptly after the applicable Order Effective Date, we'll make the Software and the License Key available for you to download via Replicated. As Updates become available, we'll make those available for you to download through Replicated. You're responsible for maintaining the confidentiality of all of your credentials, including the ones for Replicated. Take good care of them, because you agree that you'll be responsible for any activity that takes place using your credentials (whether you knew about it or not).

Services

Our Services can help you get the most out of the Software. If you want Services, let us know, and we'll work with you to prepare a SOW that describes the date, time, location, and objectives of the Services, as well as the price. Each SOW will be binding once we both sign it, and you agree that any Services we provide to you (whether pursuant to a SOW or not) will be governed exclusively by the terms of this Agreement. In the event of any conflict between the terms of this Agreement and any SOW, the terms of this Agreement will control. Provided you comply with the terms of this Agreement (including, among other things, paying us the Fees you owe us), we'll perform the Services described in each SOW, according to the timeframes in that SOW. We'll control the manner and means by which the Services are performed, and we reserve the right to determine which personnel we assign to perform Services for you. Provided we remain responsible for all of their acts and omissions, we can use third parties to help us perform the Services. You acknowledge that we will retain all right, title and interest in and to anything we use or develop in connection with performing Services for you, including, among other things, software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent we deliver anything to you during the course of performing Services, we grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use those deliverables during the term of this Agreement, solely in conjunction with your use of the Software.

Term and Termination

Term

This Agreement starts on the Agreement Effective Date and will continue in effect for either one year or on a month-to-month basis (the Initial Term), at which time, so long as you choose to renew your Software license for additional License Terms (which, to be clear, you're under no obligation to do), this Agreement will automatically continue in effect for additional one year or monthly terms (each, a Renewal Term) until this Agreement is either terminated by a party or expires in accordance with Services.

Termination for Convenience; Automatic Expiration

Either of us can terminate this Agreement for our convenience at the end of the Initial Term or any Renewal Term by providing written notice to the other at least thirty 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 Seats for an additional License Term.

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 thirty 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.

Effect of Termination

When this Agreement terminates or expires:

The License Term for any Software in your possession will immediately end, and any outstanding SOWs will immediately terminate.
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.
If you owed us any money prior to termination\/expiration, you'll need to pay us all that money immediately.
You'll destroy all copies of the Software in your possession or control, and certify in writing to us that you've done so.
Each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other.
You'll still be able to access the Software to migrate your data for ninety days after termination or expiration of this Agreement, but you won't be allowed to use the Software on a production basis during that time.
Definitions, Restrictions, Verification, Government Users, Services, Termination for Convenience; Automatic Expiration, Termination for Breach, Effect of Termination, Payment, Disclaimer, Limitation of Liability, Indemnification, Confidentiality, Governing Law and Jurisdiction, and Miscellaneous will survive the termination or expiration of this Agreement for any reason.

Support

Support Times

Provided that you've paid us the Fees you owe us, we'll provide you with technical support for the Software during business hours, California time, excluding weekends and national U.S. holidays. We currently only offer support via email (write to us at enterprise@coveralls.io) or web-based ticketing (through http:\/\/support.coveralls.io). You can contact our 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.

Updates

We'll make Updates available to you via Replicated.

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. 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:

someone (other than us) modifying the Software;
changing your operating system or environment in a way that adversely affects the Software or its performance;
using the Software in a manner for which it was not designed, or other than as authorized under this Agreement; or
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.

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 SOW or Order Form. Amounts payable under this Agreement are nonrefundable, except as provided in Limited Warranties. 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 our net income) that are imposed or become due in connection with the subject matter of this Agreement.

Warranties

Limited Warranties

We offer you (and only you) the following limited warranties:

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);
that any Services we perform for you under this Agreement will be performed in a good and workmanlike manner, by appropriately qualified personnel (you just need to let us know about a problem within thirty days of the date the Services were performed); and
that, for ninety 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. These 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. Our only obligation, and your only remedy, for any breach of these limited warranties will be, at our option and expense, to either:

repair the Software;
replace the Software; or
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).

Disclaimer

The limited warranties in Limited Warranties are the only warranties we make with respect to the Software, Services, 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.

Limitation of Liability

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.

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.

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 in this Agreement, which allocate risk between us and form the basis of a bargain between the parties.

Indemnification

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 Limitation of Liability, 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.

Indemnity Exclusions

You understand that we'll have no obligation to indemnify you for any Claim that's based on:

the modification of the Software, unless we were the ones who made the modifications;
your use of the Software other than as authorized by this Agreement and the Documentation;
your failure to use updated or modified Software that we make available to you that would have helped avoid or mitigate the Claim;
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
the combination, operation or use of the Software with equipment, devices, software, systems, or data that we didn't supply.

Each of these is an Indemnity Exclusion.

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 Our Indemnification Obligation, we may, at our sole option and at no charge to you (and in addition to our indemnity obligation to you in Our Indemnification Obligation):

Procure

procure for you the right to continue using the Software;

Replace

replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or

Refund

if Procure and Replace 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.

Sole Remedy

Indemnification sets 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.

Your Indemnification Obligation

Because 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 Our Indemnification Obligation, you will defend, indemnify, and hold us harmless from and against any claims that may arise out of or that are based upon:

your breach of this Agreement;
content that you upload to the Software; or
an Indemnity Exclusion.

Confidentiality

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, except as expressly in Availability of Source Code, the source code of our Software will be deemed to be our Confidential Information, regardless of whether it is marked as such.

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):

with a need to know such information;
who are parties to appropriate agreements sufficient to comply with Confidentiality; and
who are informed of the nondisclosure obligations imposed by Confidentiality.

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 in Confidentiality will survive the termination or expiration of this Agreement.

Support Exclusions

The restrictions in Restrictions on Use and Disclosure will not apply with respect to any Confidential Information that:

was or becomes publicly known through no fault of the receiving party;
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;
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
the receiving party independently develops without access to or use of the other party's Confidential Information.

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, related to or connected with this Agreement will be brought exclusively in the federal (if they have jurisdiction) or state courts located in Los Angeles, California and the parties irrevocably consent to the personal jurisdiction and venue there.

Miscellaneous

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. We can assign this Agreement in its entirety, upon notice to you but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our business or assets.

Availability of Source Code

The Software source code may be provided upon request if we determine that it is necessary to do so.

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.

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:

upon receipt, if delivered personally;
upon confirmation of receipt by the intended recipient, if by e-mail;
five business days after it is sent by registered or certified mail, with written confirmation of receipt; or
three business days after deposit with an internationally recognized express courier, with written confirmation of receipt.

Notices should be sent to the address(es) on the Invoice, unless we notify each other that those addresses have changed.

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.

Force Majeure

We 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.

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.

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 and SOW, 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.

No Other Terms

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, SOW or any Order Form are hereby rejected by us, and will be void and of no effect.

No Publicity Without Your Permission

We may identify you as a customer to current and prospective clients. We won't use your name or logo in any advertising or marketing materials without your permission, though; and if we ask for your permission, you always have the right to say no.

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