Undefined Labs, Inc. – Standard Terms and Conditions (Hosted Service)
The following Standard Terms and Conditions govern Customer’s access to and use of the Hosted Service.
- “Customer Data” means any and all data and information uploaded or imported into the Hosted Service by or on behalf of Customer, including without limitation metadata and information obtained from Repositories (e.g., branches, names of branches, commits, authors, descriptions of commits, timing information).
- “End Users” means Customer’s individual employees who use the Hosted Service.
- “Fees” means, individually and collectively, the fees and expenses set forth in the Order.
- “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
- “Order” means the Order Form document which is executed by authorized representatives of each party and to which this Exhibit A is attached.
- “Hosted Service” means Undefined Labs’ software-as-a-service offering identified in the Order.
- “Repositories” means source code repositories which Customer links to the Hosted Service.
2. Hosted service
- Provision of Hosted Service. Subject to all terms and conditions of this Agreement, Customer shall have the right to access and use the Hosted Service through up to the maximum number of simultaneous End Users specified in the Order during the Term, solely in furtherance of Customer’s own software development efforts and solely in the manner enabled by Undefined Labs and in accordance with all applicable documentation. Undefined Labs reserves the right to modify and update the features and functionality of the Hosted Service from time to time. Except for as expressly set forth herein, Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Hosted Service. Customer agrees to use the Hosted Service in compliance with all applicable laws, rules and regulations, and Customer agrees that Customer is solely responsible for its compliance with all such applicable laws, rules, and regulations.
- Restrictions. Customer acknowledges that use of the Hosted Service is provided solely for Customer’s internal use only in connection with Repositories owned by Customer, and agrees not to use the Hosted Service for the benefit of any third party. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Hosted Service, make the Hosted Service available to any third party or use the Hosted Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Hosted Service or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Hosted Service, (iii) create derivative works based on the Hosted Service; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Hosted Service or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Hosted Service; (vi) use the Hosted Service in connection with any Repositories not owned by Customer; or (vii) use the Hosted Service to develop a competitive product offering. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Hosted Service, except solely to the extent as may be specifically enabled and authorized by Undefined Labs.
- Suspension/Termination. Undefined Labs may terminate Customer’s access to or use of the Hosted Service and/or terminate this Agreement at any time if: (i) in the sole discretion of Undefined Labs, such action is necessary to prevent material errors or harm to any system or network, or to limit Undefined Labs’ liability; or (ii) Customer attempts to access or use the Hosted Service in an unauthorized manner, including without limitation any use for a third party other than a Customer, any attempt to gain access to data or information relating to other Undefined Labs clients or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
- Accounts. Customer is responsible for the activities of any and all persons accessing and using the Hosted Service using any End User’s user name and password. Customer shall, and shall instruct its End Users to, use all reasonable means to secure user names and passwords, and shall promptly notify Undefined Labs if it suspects that any user name and password has been compromised.
- Third Party Services and Modifications. The Hosted Service may include features or functionality that interoperate with online source code repositories and other services operated by third parties (such services, “Third Party Services”), pursuant to agreements between Undefined Labs and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Undefined Labs does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Undefined Labs shall have no liability with respect thereto. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Hosted Service in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
- Support. Subject to all terms and conditions herein, Undefined Labs will use commercially reasonable efforts to respond to and repair problems with the Hosted Service that are reported to Undefined Labs by Customer during normal business hours, which is Monday thru Friday from 9:00AM to 5:00PM PST (excluding Undefined Labs’ company holidays). Support will be provided via e-mail and such other electronics means as Undefined Labs may support from time to time (e.g., Slack). Only the Customer’s designated administrative contact(s) as named in the Order may request support. Undefined Labs will use commercially reasonable efforts to resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Undefined Labs’ reasonable determination.
- Control. Customer acknowledges and agrees that Undefined Labs has no obligation to monitor or edit the Customer Data, and that as between the parties Customer is solely responsible for the Customer Data. Undefined Labs reserves the right to remove any Customer Data which Undefined Labs becomes aware may violate the terms of this Agreement or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
- Data. As between the parties, Customer shall own all right, title and interest in and to Customer Data. Customer hereby grants Undefined Labs a non-exclusive, worldwide license to view, use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data in connection with Undefined Labs’ operation of the Hosted Service. Customer acknowledges and agrees that Customer Data imported for use within Hosted Service may reside on or be transmitted through Undefined Labs’ systems. Undefined Labs will use commercially reasonable security measures to prevent unauthorized access to the Customer Data, however, Customer acknowledges that: (i) no security measures are 100% effective and (ii) the Hosted Service uses the Internet for data transfer, and Internet communications have inherent insecurities. As between the parties, Undefined Labs shall own all right, title and interest in and to all data generated by Undefined Labs in connection with the operation of the Hosted Service and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often End Users use the Hosted Service and which Hosted Service features are used the most often. Undefined Labs will not disclose Usage Data or Customer Data to any third party in a manner that identifies Customer or any End User without Customer’s consent other than (i) disclosure to Undefined Labs’ third party service providers who use it for the benefit of Undefined Labs and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.
- Fees. Customer shall pay Undefined Labs the Fees as set forth in the Order. All recurring monthly Fees under the Order shall be due and payable in advance of the applicable month. All other Fees are due and payable in arrears except to the extent otherwise set forth in the Order.
- Payment Terms. Unless otherwise stated by the parties in the Order, Undefined Labs shall invoice Customer for Fees on a monthly basis. Unless otherwise set forth in the Order, Customer agrees to pay each invoice within thirty (30) days of the invoice date, provided that recurring monthly fees under the Order must be received by Undefined Labs prior to the first day of the applicable month regardless of the invoice date. All payments will be made in U.S. dollars. Any amounts due to Undefined Labs under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Undefined Labs’ income.
- Undefined Labs. As between the parties, Undefined Labs owns all right, title and interest (including all Intellectual Property Rights) in and to the Hosted Service (including without limitation all underlying source code, algorithms, models, features, or functionality) and any software, technology, materials and information (i) owned by Undefined Labs prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Undefined Labs after the Effective Date (collectively, the “Hosted Service Materials”). Nothing herein shall be construed to transfer any rights, title or ownership of the Hosted Service, the Hosted Service Materials, or any Undefined Labs software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Undefined Labs’ products or services (“Feedback”) to Undefined Labs. To the extent Customer does provide any Feedback to Undefined Labs, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Undefined Labs and acknowledges that Undefined Labs may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
- Customer. As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Customer Data and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Customer after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Customer Data or any Customer software, technology, materials, information or Intellectual Property Rights to Undefined Labs.
5. Term; Termination
- Term. The Term of this Agreement is as set forth in the Order.
- Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
- Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
- Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2, 2.5, 2.7, 2.8, 2.9, 3 (with respect to accrued but unpaid Fees), 4, 5.3, 7, 8, 9, 10 and 11 shall survive expiration or termination of this Agreement.
6. Representations and warranties
Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
- Customer Indemnity. Customer agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Undefined Labs or its directors, officers or employees (“Undefined Labs Indemnitees”) arising out of or relating to Customer’s use of the Hosted Service other than an IP Claim (any of the foregoing, a “Claim”). Customer will pay those amounts finally awarded by a court of competent jurisdiction against Undefined Labs Indemnitees, or subject to the terms of Section 7.3, payable pursuant to a settlement agreement with respect to the Claim.
- Undefined Labs Indemnity. Undefined Labs agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Customer or its Affiliates, or their directors, officers and employees (“Customer Indemnitees”), alleging that Undefined Labs’ technology underlying the Hosted Service infringes the United States copyright or trade secret of such third party (an “IP Claim”), Undefined Labs will pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees, or subject to the terms of Section 7.3, payable pursuant to a settlement agreement with respect to the IP Claim. If Undefined Labs, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Undefined Labs may, at its option, (a) obtain a license from such third party claimant that allows Customer to continue the use of the Hosted Service, (b) modify the Hosted Service so as to be non-infringing, or (c) if neither (a) nor (b) is available to Undefined Labs on commercially reasonable terms, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid Service Fees on a pro-rata basis. Undefined Labs will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Hosted Service at the direction of Customer or any third party; (y) is based on the combination or use of the Hosted Service (or any component of either) with any software, hardware, system, method, device or materials not provided or required by Undefined Labs; or (z) results from Customer’s use of the Hosted Service in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 7.2 sets forth the entire liability of Undefined Labs and the sole and exclusive remedy of Customer in the event of any claim that the Hosted Service infringes any third party Intellectual Property Right.
- Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim or IP Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 7.3 will not relieve the Indemnitor of its obligations under this Section 7 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. Undefined Labs and ITS SUPPLIERS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE HOSTED SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. Undefined Labs DOES NOT WARRANT THE RESULTS OF USE OF THE HOSTED SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE HOSTED SERVICE is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or air traffic control, weapons systems, life-support machines, or any other application in which the failure of the HOSTED SERVICE could lead directly to death, personal injury, or severe physical or property damage or environmental damage (collectively, “High Risk Activities”). UNDEFINED LABS expressly disclaims any express or implied guarantee of fitness for such High Risk Activities.
- Definition. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. Confidential Information of Undefined Labs will include without limitation the Hosted Service and any related documentation.
- Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, except to those employees of the receiving party with a need to know. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
- Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees and contractors who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
- Required Disclosure. Neither party shall be in breach of this Section 9 for any disclosure of the other party’s Confidential Information that such party is required by law or legal process to make, provided that the party subject to such requirement gives the other party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
- Return of Materials. Upon the termination of this Agreement, each party shall deliver to the other party all of such other party’s Confidential Information that such party may have in its possession or control.
10. Limitation of Liability
EXCEPT WITH RESPECT TO SECTION 7 OR EITHER PARTY’S BREACH OF SECTION 9, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO SECTION 7, EITHER PARTY’S BREACH OF SECTION 9 OR CUSTOMERS BREACH OF ITS PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID TO UNDEFINED LABS UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREe THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. The provisions of this Section 10 allocate risks under this Agreement between Customer and Undefined Labs, and Customer acknowledges that the fees payable hereunder reflect this allocation of risks and limitation of liability.
- Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
- Publicity. Customer acknowledges that Undefined Labs may desire to use its name in websites, marketing collateral, press releases, product brochures and financial reports indicating that Customer is a customer of Undefined Labs, and Customer agrees that Undefined Labs may reasonably use its name in such a manner.
- Third Party Beneficiaries. Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
- Assigment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred or delegated by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of or in connection with a sale of assets, merger or consolidation, without the prior written consent of Undefined Labs, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns..
- Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
- Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses noted in the Order. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
- Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
- Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
- Severability; Counterparts. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
- Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may issue in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Undefined Labs to object to such terms, provisions or conditions.
- Governing Law; Jurisdiction. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in California for resolution of any disputes arising out of this Agreement.
- Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.