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This repository has been archived by the owner on Jan 5, 2023. It is now read-only.PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF THE PRODUCTS (AS DEFINED BELOW), UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON OR BY ACCESSING THE PRODUCTS, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. 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 COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. WE MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, SUBJECT TO SECTION (CHANGES TO THIS AGREEMENT).
This Agreement comprises the following terms and conditions and any attached exhibits or other addenda mutually agreed to by the Parties (“ Exhibits ”). This Agreement applies to the following GitHub products which are further defined below: (a) the Software, (b) any related Support, and (c) any related Professional Services (collectively, “ Products ”).
If you have purchased the Products from a GitHub Partner, the following provisions of this Agreement will be superseded by the terms upon which you’ve agreed with the GitHub Partner: Section 7, Payment; Section 8, Delivery; Section 9, Verification; and Section 16, Termination.
1. Definitions. Capitalized words not listed here will be defined within the Agreement.
"Agreement Effective Date" is the earlier of the date that Customer either clicks "I Agree" to the terms and conditions of this Agreement, or that it first places an Order for the Products.
"Affiliate" means any entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with a Party where “’ownership” or “control” means having more than fifty percent (50%) voting power of the controlled entity.
"Confidential Information" means all non-public information disclosed by either Party to the other, in writing, orally, or by other means, designated as confidential or that a Party knows or reasonably should know, under the circumstances surrounding the disclosure and the nature of the information, is confidential to the disclosing Party.
"Documentation" means any manuals, documentation and other supporting materials related to the Software that GitHub provides or makes available to Customer. Documentation is considered part of the Software.
"Fees" means the fees Customer is required to pay GitHub to use the Products during the applicable License Term or Professional Services, as such fees are reflected on an Order Form or SOW.
“GitHub Partner ” means a company authorized to resell GitHub Products under the terms and conditions of GitHub’s Channel Partner Agreement.
"License" means a data file used by the Software's access control mechanism that allows Customer to install, operate, and use the Software during the License Term.
"License Key" is the means by which a License is delivered via a secure, password-protected website.
"License Term" means the period of one (1) year from the License Effective Date unless an alternate period is specified in an Order Form. GitHub will provide Customer with a renewal notice at least sixty (60) days before the expiration of License Term and will generate a new Order Form for renewal. GitHub will provide a new License Key for Customer to download that will allow continued use of the Software in accordance with the Order Form.
"Order Form" means written or electronic documentation (including a quote) that the Parties use to order the Products. The Order Form will specify Customer’s authorized scope of use for the Products, which may include: (a) license type, (b) number and type of Seats, (c) number of production instances, (d) License Term, or (e) other restrictions or special terms (together, the “ Scope of Use ”). Upon execution by the Parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms of this Agreement.
"License Effective Date" is the effective date of each Order Form as stated therein.
"Parties" means references to GitHub and Customer collectively. Each may be referred to individually as a “ Party ”.
"Professional Services" means training, consulting, or implementation services that GitHub provides to Customer pursuant to a mutually executed Statement of Work. Services do not include Support.
"Professional Services Credits" means the payment method for purchasing Professional Services (exclusive of travel and lodging expenses) upfront that Customer may use over a period of twelve (12) months (unless otherwise stated in an Order Form) for its Professional Services needs. Any Professional Services Credits that remain unused at the end of twelve (12) months from the date of purchase (or as otherwise stated in an Order Form) are automatically cancelled and are non-refundable.
"Seats" means the number of User accounts for the Software that Customer is authorized to create. The number of Seats is specified in an Order Form. Only one User per Seat per production License. Multiple Users are not allowed to use the same Seat.
"Software" means GitHub’s proprietary enterprise software. Software includes any applicable Documentation, as well as any Updates to the Software that GitHub provides to Customer or that Customer can access under this Agreement.
"Support" has the meaning stated in Exhibit B.
"Statement of Work" or "SOW" means a mutually executed statement of work detailing the Services GitHub will perform for you, related Fees, and each Party’s related obligations.
"Update" or "Release" means a Software release that GitHub makes generally available to its customers, along with any corresponding changes to Documentation. An “ Update ” specifically refers to an error correction or bug fix, generally indicated by a change in the digit to the right of the second decimal point (e.g., x.x.x to x.x.y). A “ Release ” specifically refers to 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).
"User" means a single person or machine account that initiates the execution of the Software or interacts with or directs the Software in the performance of its functions. The number of Users should not exceed the number of Seats that Customer has licensed.
2. License Grant. Subject to Customer’s compliance with the Agreement, GitHub hereby grants Customer a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to install and use a single production License of the Software (unless otherwise stated in an Order Form) for its internal business purposes during the applicable License Term, in accordance with the Scope of Use and Documentation, and only for the number and type of Seats stated in an Order Form. Customer may make copies of the Software for non-production purposes only, such as testing, staging or quality assurance purposes, provided that Customer reproduces all copyright and other proprietary notices that appear on the original copy of the Software. Customer’s Affiliates, agents and contractors (together, “ Authorized Third Parties ”) may use the Software also, so long as its Authorized Third Parties are using it on Customer’s behalf and Customer agrees to remain fully responsible for its Authorized Third Parties’ behavior under this Agreement.
3. License Restrictions. As between the Parties, GitHub owns all right, title and interest in and to the Software, and any intellectual property rights associated with it and with GitHub, Inc. GitHub reserves all rights in and to the Software not expressly granted to Customer in this Agreement. Except as expressly permitted by this Agreement, by law, or by applicable third party license, Customer and its Affiliates must not and must not allow any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or redistribute the Software; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to access the Software, except as expressly permitted in this Agreement; (iv) hack or modify the License Key, or avoid or change any license registration process; (v) modify or create derivative works of the Software, or merge the Software with other software; (vi) 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; (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 the Software beyond its applicable License Term.
4. Modifications to the Software. Customer may modify the Software solely for purpose of developing bug fixes, customizations and additional features to any libraries licensed under open source licenses that may be included with or linked to by the Software (“ Customer Modifications ”). Notwithstanding anything in this Agreement to the contrary, GitHub has no support, warranty, indemnification or other obligation or liability with respect to Customer Modifications or its combination, interaction or use with the Software. Customer must indemnify, defend and hold GitHub harmless from and against all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against GitHub by a third party relating to Customer Modifications (including but not limited to any representations or warranties Customer makes about Customer Modifications to the Software).
5. Third Party Code. GitHub’s Software includes code and libraries licensed to GitHub by third parties, including software whose licenses require GitHub to make the source code for those components available. The source code for such components will be provided upon request. Before a new component is added to GitHub’s Software, GitHub completes a process for ensuring such component is under terms that GitHub can safely distribute and Customer can use. GitHub warrants that the Software does not and will not include any software distributed under a license that would: (a) affect Customer’s proprietary rights in its product(s) or data, (b) subject Customer to any obligation to disclose, distribute or license its own product(s) in source code form or otherwise make the product(s) available for use by others or for the purpose of creating derivative works, or (c) add or place any more onerous restrictions on Customer’s use of the Software than is included in this Agreement.
6. Seats. Only one person may be associated with a User account. Customer may swap out, delete, or suspend a User, and then assign a new User to the open Seat. If Customer needs more Seats, it must submit a new request through GitHub’s website or via our sales team, and pay for the additional Seats (a new Order Form will be generated). If Customer purchases additional Seats, it must pay the then-currently applicable Fees for those Seats, prorated for the balance of the applicable License Term. When the time comes to renew Customers’ Seats for another License Term, GitHub will invoice all Seats at once on an annual basis unless otherwise specified in an Order Form. Customer agrees that any Orders for additional Seats during the term of this Agreement will be governed by this Agreement.
7. Payment.
7.1 Customer agrees to pay the Fees in full, up front without deduction or setoff of any kind, in U.S. Dollars (or Professional Services Credits, if applicable) unless otherwise specified in an
Order Form or unless purchasing through an authorized third party. If Customer is purchasing through an authorized third party, then payment terms will be agreed upon between Customer and the authorized third party. Customer must pay the Fees within thirty (30) days of the date of the invoice that GitHub sends Customer related to the applicable SOW or Order Form. Amounts payable under this Agreement are non-refundable, except as provided in Sections 12.1 and 13.3. If Customer fails to pay the Fees on time, GitHub reserves the right, in addition to taking any other action at law or equity, to charge Customer 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. Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on GitHub's net income) that are imposed or become due in connection with this Agreement. GitHub may also, at its sole option, elect to terminate the Order Form and Agreement.
7.2 If Customer uses its pre-paid Professional Services Credits as the means of payment for Professional Services, then upon Customer's receipt of an SOW, the applicable Professional Services Credits will be deducted from Customer's Professional Services Credits balance. Customer is responsible for ensuring that its purchase order ("PO") issued to GitHub for the Professional Services reflects the pricing set forth in the SOW. If there is any difference in pricing listed in the SOW and the pricing listed in the PO, the pricing in the SOW will control. The Parties agree that SOWs payable via Professional Services Credits do not have to be signed by either Party to be valid and enforceable. Subject to the SOW, all Fees paid by Customer are non-refundable and all Service Credits must be used within the time set forth in the Order Form or will automatically be cancelled and are non-refundable. Customer cannot apply Professional Services Credits to travel and lodging expenses, which must be invoiced separately.
8. Delivery. Promptly after the applicable License Effective Date, GitHub will make the Software and the License available for Customer to download on a secure, password-protected website. All deliveries under this Agreement will be electronic. For the avoidance of doubt, Customer is responsible for installation of any Software and acknowledges that GitHub has no further delivery obligation with respect to the Software after delivery of the License. As Updates become available, GitHub will make those available for download on the same website. Customer must Update the Software on a commercially reasonable basis but no less than one (1) time per year. Customer is responsible for maintaining the confidentiality of its usernames and passwords, including those it uses to download the Software and is responsible for any activity with respect to its usernames and passwords.
9. Verification. At GitHub’s request, Customer agrees to promptly provide GitHub with a Software-generated report that verifies that Customer is using the Software in accordance with the terms of this Agreement, including the Scope of Use. If GitHub determines that Customer has exceeded its Scope of Use, then in addition to any other remedies at law or in equity, GitHub will invoice Customer for any additional use, effective from the date Customer exceeded the Scope of Use.
10. Support. Subject to Customer’s compliance with this Agreement, GitHub will provide technical support for the Software as further described in the attached Exhibit A (Support Terms) during the period that Customer has paid the Fees (if applicable). Support includes access to Updates, as they are made available.
11. Professional Services. Upon Customer’s request, GitHub will provide a Statement of Work (“SOW”) detailing the Professional Services in a form substantially similar to Exhibit C attached hereto. Each SOW is binding upon signature by the Parties and any Professional Services will be governed 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. GitHub must perform the Professional Services described in each SOW according to the timeframes set forth in that SOW. GitHub will control the manner and means by which the Professional Services are performed and reserve the right to determine which personnel is/are assigned to perform the Professional Services. GitHub may use third parties to perform the Professional Services provided GitHub remains responsible for all their acts and omissions. Customer acknowledges that GitHub retains all right, title and interest in and to anything used or developed in connection with performing the Professional Services, including, among other things, software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent GitHub delivers anything to Customer during the course of performing the Professional Services, GitHub grants to Customer 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 Customer’s use of the Software.
12. Limited Warranties.
12.1 Limited Software Warranties. GitHub represents and warrants that: (i) the unmodified Software, at the time it is made available to Customer 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 Customer’s software, hardware, computer system, or network) and (ii) for ninety (90) days from the date it is made available for initial download, the unmodified Software will substantially conform to its Documentation. GitHub does not warrant that Customer’s use of the Software will be uninterrupted, or that the operation of the Software will be error-free. These warranties will not apply if Customer modifies or uses the Software in any way that is not expressly permitted by this Agreement and the Documentation. GitHub’s only obligation, and Customer’s only remedy, for any breach of these limited warranties will be, at GitHub’s 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 unused, prepaid Fees for the defective Software during the then-current License Term.
12.2 Professional Services Warranty. Unless otherwise set forth in an SOW, GitHub represents and warrants that any Professional Services performed under this Agreement will be performed in a professional and workmanlike manner by appropriately qualified personnel. GitHub’s only obligation, and Customer’s only remedy, for a breach of this warranty will be, at GitHub’s option and expense, to either: (i) promptly re-perform any Professional Services that fail to meet this limited warranty or (ii) if the breach of limited warranty cannot be cured, terminate the SOW and GitHub will refund Customer the unused prepaid Fees.
12.3 General Warranty. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, and that this Agreement and each Order Form is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement.
12.4 Warranty Disclaimer. THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES GITHUB MAKES WITH RESPECT TO THE SOFTWARE, SERVICES AND SUPPORT. GITHUB DOES NOT MAKE ANY OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, AND HEREBY SPECIFICALLY DISCLAIMS 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, PROVIDED BY GITHUB OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
13. Indemnification.
13.1 GitHub’s Indemnification Obligation. GitHub will defend and indemnify Customer against any third-party claim brought against Customer to the extent that it is based on an allegation that Customer’s authorized use or possession of the Software infringes a U.S. copyright or misappropriates a trade secret of any third party (each, a "Claim"), and pay damages and costs (including reasonable legal fees) awarded by a court of final appeal attributable to such a Claim, provided that Customer: (i) notify GitHub in writing of any such Claim as soon as reasonably practicable; (ii) allow GitHub to control and direct the investigation, defense, and settlement (if applicable) of the Claim, and (iii) reasonably cooperate with GitHub in the defense of any such Claim and related settlement negotiations.
13.2 Exclusions. GitHub’s indemnity obligation must not extend to any Claim that is based on: (i) the modification or use of the Software other than as authorized by this Agreement (including the Documentation); (ii) Customer’s failure to stop using the Software after receiving written notice to do so in order to avoid further infringement or misappropriation; or (iii) the combination, operation or use of the Software with equipment, devices, software, systems, or data not authorized by this Agreement (including the Documentation) to the extent that without such combination the Software would have avoided a Claim (subparts (i)-(iii) may be referred to collectively as "Indemnity Exclusions").
13.3 Right to Ameliorate Damages. If Customer’s use of the Software is, or in GitHub’s reasonable opinion is likely to be, subject to a Claim under Section 13.1, GitHub may, in its sole option and at no charge to Customer (and in addition to GitHub’s indemnity obligation in Section 13.1): (i) procure 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 GitHub’s reasonable estimation, terminate this Agreement and all licenses granted hereunder (in which event, Customer must immediately stop using the Software) and GitHub must refund the unused, pre-paid Fees for the then-current License Term.
13.4 Sole Remedy. THIS SECTION 13 SETS FORTH GITHUB’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
13.5 Customer’s Indemnification Obligation. Customer will defend and indemnify GitHub from and against any claims that may arise out of or that are based upon (i) Customer’s breach of confidentiality; (ii) content that Customer uploads to the Software; or (iii) an Indemnity Exclusion.
14. LIMITATION OF LIABILITY.
14.1 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GITHUB BE LIABLE TO CUSTOMER 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 GITHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GITHUB’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER 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 ACTUALLY PAID DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
15. Confidentiality.
15.1 Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" means any business or technical information that either Party discloses to the other, in writing, orally, or by any other means, including disclosures 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 set forth in Section 5, the source code of the Software will be deemed to be GitHub's Confidential Information, regardless of whether it is marked as such.
15.2 Restrictions on Use and Disclosure. Neither Party will use the other Party's Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other Party's Confidential Information using at least the same degree of care as it uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other Party'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 15, and (iii) who are informed of the non-disclosure obligations imposed by this Section 15. Each Party is responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either Party 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 15 will survive the termination or expiration of this Agreement.
15.3 Exclusions. The restrictions set forth in Section 15.2 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.
16. Term and Termination.
16.1 Agreement Term. This Agreement starts on the Agreement Effective Date and will continue in effect until this Agreement is terminated by a Party in accordance with this Section 16. If this Agreement is terminated before the expiration or termination of a License Term, then any active Order Forms will remain in force pursuant to the terms of this Agreement.
16.2 Termination for Convenience. Either Party may terminate an Order Form, with or without cause, upon at least thirty (30) days written notice before the end of the then-current License Term stated in the Order Form.
16.3 Termination for Material Breach. Either Party may terminate this Agreement immediately upon notice if the other Party breaches a material obligation under this Agreement and fails to cure the breach within thirty (30) days from the date it receives notification. Either Party reserves the right to terminate this Agreement immediately upon written notice, but without giving the other Party a cure period, if Customer breaches any of the terms of this Agreement relating to GitHub’s intellectual property (including Customer’s compliance with the license grant and any license restrictions) or either Party’s Confidential Information.
16.4 Effect of Termination; Survival. When this Agreement terminates or expires, Customer may not execute additional Order Forms; however, the Agreement will remain in full force and effect for the remainder of any active Order Forms. When an Order Form terminates or expires, as to that Order Form: (i) the License Term for any Software will immediately end; (ii) Customer will no longer have the right to use the Software, and any Licenses granted in the Order Form will automatically cease to exist as of the date of termination or expiration; (iii) if any Fees were owed prior to termination, Customer must pay those Fees immediately; (iv) Customer must destroy all copies of the Software in its possession or control, and certify in writing to GitHub that it has done so; and (v) each Party will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other. Notwithstanding the foregoing, Customer may continue to access the Software to migrate its data for ninety (90) days after termination or expiration of this Agreement or an Order Form; however, Customer must not use the Software on a production basis during that time. Any terms or sections which by their nature should reasonably survive will survive the termination or expiration of this Agreement or an Order Form.
17. General Provisions.
17.1 Governing Law; Venue. For Customers domiciled in the United States, Canada, Mexico, or a country in Central or South America or the Caribbean (the “Americas”), this Agreement will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. For such Customers, any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. For Customers domiciled outside the Americas, this Agreement will be governed by the laws of England and Wales. 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. Notwithstanding the foregoing, GitHub may bring a claim for equitable relief in any court with proper jurisdiction.
17.2 Government Users. The Products and Documentation were developed solely with private funds and are considered "Commercial Computer Software" and "Commercial Computer Software Documentation" as described in Federal Acquisition Regulations 12.212 and 27.405-3, and Defense Federal Acquisition Regulation Supplement 227.7202-3. The Products are licensed to the United States Government end user as restricted computer software and limited rights data. No technical data or computer software is developed under this Agreement. Any use, disclosure, modification, distribution, or reproduction of the Products or Documentation by
the United States Government or its contractors is subject to the restrictions set forth in this Agreement. All other use is prohibited.
17.3 Export. The Products are subject to export restrictions by the United States Government and import restrictions by certain foreign governments, and Customer agrees to comply with all applicable export and import laws and regulations in its use of the Products. Customer must not and must not allow any third party to remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the United States Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re- export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer represents and warrants that (i) it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) none of its data is controlled under the United States International Traffic in Arms Regulations. Customer acknowledges that the Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
17.4 No Publicity without Permission. GitHub may identify you as a customer to current and prospective clients. However, GitHub may not use Customer’s name or logo in any advertising or marketing materials without permission.
17.5 Assignment. Customer may not assign this Agreement, in whole or in part, without GitHub’s prior written consent and any attempt to do so will be null and void. GitHub will not unreasonably withhold its consent if the assignee agrees to be bound by the terms and conditions of this Agreement. GitHub may assign this Agreement in its entirety, upon notice to Customer but without Customer’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of GitHub’s business or assets.
17.6 Notices. Any notice, request, demand or other communication under this Agreement must be in writing (e-mail is acceptable), must 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 and email; or (iv) three (3) business days after deposit with an internationally recognized express courier and email, with written confirmation of receipt. Notices should be sent to the address(es) set forth on the invoice or the opening paragraph of this Agreement, unless a Party notifies the other that those addresses have changed.
17.7 Force Majeure. GitHub will be excused from liability to the extent that it is unable to perform any obligation under this Agreement due to extraordinary causes beyond its reasonable control, including acts of God, natural disasters, strikes, lockouts, riots, acts of war, epidemics, or power, telecommunication or network failures.
17.8 Independent Contractors. The Parties are 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 to create a legal association, partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the Parties, and neither Party can bind the other contractually.
17.9 Waiver. A Party's obligations under this Agreement must 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. No failure or delay by a Party to this Agreement in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right hereunder at law or equity.
17.10 Entire Agreement. 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 all prior or contemporaneous understandings and agreements, whether oral or written, between the Parties with respect to its subject matter. The terms of any purchase order, written terms or conditions, or other document that Customer submits to GitHub that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement, SOW or any Order Form will be void and of no effect.
17.11 Amendments. Order of Precedence. GitHub reserves the right to amend this Agreement at any time and will update the terms and conditions of this Agreement in the event of any such amendments. Changes to this Agreement will become effective upon the anniversary of your then-current License Term. In the event of a conflict between this Agreement and an Order Form, an Order Form will govern with respect to that order only. This Agreement and any addenda, including an Order Form, must control and no modification, change, or amendment of this Agreement will be binding upon the Parties or supersede the terms of this Agreement unless it is in writing, and is duly signed by each Party’s authorized representative.
17.12 Severability. If 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 cannot 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.
EXHIBIT A - SUPPORT TERMS
1. Standard Support. Subject to Customer’s compliance with this Agreement, GitHub will provide technical support for the Software (“Support”) at no additional charge twenty-four (24) hours per day, five (5) days per week, excluding weekends and national U.S. holidays (“Standard Support”). Standard Support is only offered via web-based ticketing (through support.enterprise.github.com). Though GitHub will use reasonable efforts to respond to automated Support requests, please initiate Support requests from a person or machine with which GitHub’s Support team can interact.
2. Premium Support. Subject to the Support Fees stated in an applicable Order Form and the Premium Support terms, GitHub will provide premium technical support for the Software (“Premium Support”) at the Support level and term specified in an Order Form or SOW.
3. Dedicated Support. Subject to the Support Fees stated in an applicable Order Form, GitHub will provide additional dedicated technical support for the Software (“Dedicated Support”) via dedicated Support engineer(s) as more fully described in an Order Form or SOW (“DSE”) at the Support level and term specified in an Order Form or SOW.
4. Updates. GitHub will make Updates and Releases available to Customer on the same secure website where Customer downloaded the Software and the License Key.
5. Exclusions. GitHub will use reasonable efforts to correct any material, reproducible errors in the Software upon Customer’s notification of an error. However, GitHub will not be responsible for providing Support where (i) someone (other than GitHub) modifies the Software; (ii) Customer changes its operating system or environment in a way that adversely affects the Software or its performance; (iii) Customer uses the Software in a manner other than as authorized under this Agreement or the Documentation; or (iv) Customer’s accident, negligence, or misuse of the Software.
6. Supported Releases. GitHub will only Support a given Release of the Software for one (1) year from the original Release date, or six (6) months from the last Update of the Release, whichever is longer. If Customer requires Support for earlier Releases of the Software, then Customer must pay for that Support in accordance with the terms of a mutually agreed upon Order Form or SOW.