These Terms of Service (”Terms of Service”) are between LevelOps, Inc. (”LevelOps”) and the entity (hereinafter “Customer”).
1. SERVICE OFFERING
(a) Access Grant. Upon Customer’s execution or acceptance of this agreement, LevelOps grants Customer the right to access and use the Sherlock for JIRA tool (the “Services”) subject to the terms set forth in this Agreement. This right is non-transferable and non-exclusive. LevelOps reserves the right to modify or improve portions of the Services.
(b) Other Software. To the extent LevelOps provides Customer any software, LevelOps grants to Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to install, access, and use such software solely in connection with Customer’s access and use of the Services in accordance with this Agreement.
(c) Restrictions on Use. In no event will Customer: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying trade secrets, ideas, or algorithms of any of the software comprising any part of the Services; (ii) lease, distribute, license, sell or otherwise commercially exploit any of the Services or make the Services available to a third party other than as contemplated in this Agreement, including but not limited to using the Services for timesharing, service bureau, or other similar purposes; (iii) use the Services on behalf of any third parties; (iv) tamper with other customer accounts of LevelOps; (v) attempt to gain unauthorized access to the Services or its related systems or networks; (vi) access or use the Service for the purpose of developing a competing product or service; (vii) enter any data into the Services that is subject to the General Data Protection Regulation (i.e., the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) or (viii) permit anyone else, to engage, directly or indirectly, in any of the activities described in the foregoing subparts (i) through (vii). All the limitations and restrictions on use of the Services in this Agreement will also apply to any software and documentation that is part of or provided through the Services (together with the Services and Confidential Information (defined below), collectively, the “LevelOps Materials”). LevelOps may restrict or prohibit use of or access to the Services if LevelOps reasonably suspects that any use or access of the Services is or may be in breach of this Agreement.
2. CONFIDENTIAL INFORMATION
For the purposes of this Agreement, “Confidential Information” means any information disclosed by LevelOps to Customer or its users, or any LevelOps information, data, software, or other materials that, under the circumstances of disclosure, would be reasonably understood to be considered confidential, including technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, marketing plans, financial information, including but not limited to the LevelOps Materials. Customer will: (i) hold in strict confidence all Confidential Information; (ii) use the Confidential Information only to perform or to exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity except to the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of Customer who need to know such Confidential Information, who are under confidentiality obligations substantially similar as those set forth hereunder, and whose handling and treatment of the Confidential Information in accordance with this Agreement is Customer’s full responsibility. Customer will use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like nature, but Customer will use at least reasonable care. Customer may disclose the Confidential Information in response to a valid court order, law, rule, regulation, or other governmental action provided that (x) Customer notifies LevelOps in writing prior to disclosure of the information in order to provide LevelOps a reasonable opportunity to obtain a protective order, and (y) Customer assists LevelOps in any attempt to limit or prevent the disclosure of the Confidential Information. Customer will promptly notify LevelOps in the event of any unauthorized use or disclosure of the Confidential Information. Customer agrees that LevelOps may have no adequate remedy at law if there is a breach or threatened breach of this Section 4 and, accordingly, that LevelOps will be entitled to injunctive or other equitable relief to prevent or remedy such a breach in addition to any legal remedies available to LevelOps. The obligations in this Agreement with respect to Confidential Information will not apply to any information that would otherwise constitute Confidential Information but that which: (i) is publicly known and made generally available in the public domain without breach of any obligation of confidentiality or restriction on disclosure; or (ii) is in the possession of Customer without breach of any obligation of confidentiality or restriction on disclosure at the time of disclosure by LevelOps.
LevelOps will own all intellectual property and other rights in and to the LevelOps Materials. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any right or license to such rights, whether by estoppel, implication or otherwise, and Customer acknowledges that it has no ownership interest in the LevelOps Materials, or any derivatives, modifications, upgrades, updates, new versions, fixes, improvements or enhancements thereof or thereto. Customer hereby assigns to LevelOps any rights, title and interest, including all intellectual property rights, in any feedback, derivative works, modifications, enhancements, or improvements related to the LevelOps Materials.
4. WARRANTIES; DISCLAIMER
(a) Customer Warranties. Customer represents and warrants that (i) it has the full corporate power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a binding obligation upon it and, when executed by both parties, is enforceable in accordance with its terms; (iv) it will comply with all applicable laws, rules and regulations in the course of performing its obligations and exercising its rights under this Agreement; and (v) any Customer Content provided to LevelOps or otherwise used by either party in connection with this Agreement will not infringe, misappropriate or otherwise violate any right of any third party.
(b) Disclaimer. ALL SERVICES, SOFTWARE AND OTHER LEVELOPS MATERIALS PROVIDED BY LEVELOPS ARE PROVIDED TO CUSTOMER “AS-IS” AND LEVELOPS MAKES NO, AND DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. LEVELOPS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS OR IN A SECURE MANNER. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LEVELOPS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY LOSS OF DATA OR DAMAGES RESULTING THEREFROM. THE SERVICES MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY ON THEM TO PERFORM CERTAIN FUNCTIONALITY IN CONNECTION WITH THE SERVICES. LEVELOPS MAKES NO WARRANTY AS TO THE OPERATION OF ANY THIRD PARTY PRODUCTS OR THE ACCURACY OF ANY THIRD PARTY INFORMATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LEVELOPS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
Customer will defend, indemnify, and hold harmless LevelOps, its affiliates, subsidiaries, and parent companies, together with each of their respective officers, directors, members, employees, agents, contractors, representatives, successors and assigns (each, a “LevelOps Indemnitee”) against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including reasonable attorneys’ fees, professional fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, which are incurred by any LevelOps Indemnitee arising out of any third party claim, demand, allegation, investigation, or other proceeding made in connection with or otherwise related to Customer’s breach of any representation, warranty or covenant in this Agreement.
6. LIMITATION OF LIABILITY
(a) Limitation and Disclaimer. IN NO EVENT WILL LEVELOPS (OR ITS SUPPLIERS OR AFFILIATES) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, LOST PROFIT OR OTHER SIMILAR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LEVELOPS’S TOTAL AGGREGATE LIABILITY FOR DAMAGES OF ANY NATURE UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO LEVELOPS UNDER THE APPLICABLE ORDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT WILL LEVELOPS HAVE ANY LIABILITY ARISING OUT ANY OF CUSTOMER CONTENT PROVIDED TO LEVELOPS IN CONNECTION WITH THE SERVICES HEREUNDER.
7. MANDATORY ARBITRATION
The parties consent to arbitrate any claim, dispute or controversy (each, a “Claim”) arising out of or relating to this Agreement or the relationships among the parties hereto through binding arbitration administered by the American Arbitration Association (”AAA”). The parties will notify each other in writing of any Claim within 30 days of when it arises. Notice to LevelOps will be sent to 2445 Augustine Drive, #150, Santa Clara, USA 95054 Attention: Legal. The parties further agree: (i) to attempt informal resolution of the Claim prior to any demand for arbitration; (ii) that any arbitration will occur in Santa Clara County, California; (iii) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association; and (iv) that the state or federal courts in Santa Clara County, California have exclusive jurisdiction over any appeals of an arbitration award. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. However, the preceding sentence will not apply to the Section entitled “Class Action Waiver” immediately below. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
8. EXPORT CONTROLS
Customer will comply with all export and re-export restrictions and regulations imposed by the government of the United States and other relevant countries or regions (”Export Restrictions”). Customer will not transfer, directly or indirectly, any restricted software or technical data received hereunder or the direct product of such data, to any country or region identified as an embargoed destination or country in the Export Restrictions, unless prior written authorization is obtained from LevelOps and each appropriate United States or other government agencies.
This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. Any amendment to this Agreement must be in writing and signed by the authorized representatives of the parties. Except for payment obligations, each party will be excused from performance of its obligations under this Agreement if such a failure to perform results from acts beyond its reasonable control. Customer may not assign this Agreement, by merger (including operation of law), transfer of equity, other change of control or otherwise, and any attempt to do so is null, void and of no effect. All notices required under this Agreement will be in writing and sent by express mail or other overnight delivery service providing receipt of delivery to the address set forth in the Order, with notice effective upon delivery. The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right. If any portion of this Agreement is held invalid, illegal or unenforceable, such determination will not impair the enforceability of the remaining terms and provisions herein.