DevScore PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY USING OR PURCHASING THE SERVICES, CUSTOMER (A) ACCEPTS THE AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS.
1.1 “Confidential Information” means all confidential information disclosed by a party to the other party, whether orally or in writing that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to all code, inventions, know-how, business, technical and financial information disclosed to such party.
1.2 “Customer” means the customer identified on the Order Form or that have signed up for the service through the online self service and on boarding process.
1.4 “Data Contributor(s)” means the unique individual who is being tracked via the System Data as a feature of the Products. Terminated contributors are included and do not count against the licensed Data Contributor count.
1.5 “Order Form” means the DevScore form or process for placing orders (including renewal or upgrade orders) for DevScore Products and Services including addenda thereto, that are entered into between Customer and DevScore.
1.6 “Products” means the DevScore products or features or functionality identified on the applicable Order Form and/or the online on boarding process which are made available to Customer as software as a service.
1.7 “DevScore Technology” means the Products (including all No-Charge Products and Freemium Services), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for DevScore.
1.8 “Services” means DevScore products that are provided to Customer as a cloud based software as a service.
1.9 “Software” means DevScore products that are provided to Customer for on-premise installation or downloadable software applications or agents, software development kits (SDKs), and/or application programming interfaces (APIs).
1.10 “Source System Data” means personal information contained within Customer’s source systems (e.g. Jira, GitHub, GitLab, Workday), which the Product uses to provide software development analytics and performance insights.
1.11 “Term” means either the term for which Customer purchases the Services on a subscription basis or licenses Software as set forth in the applicable Order Form, including any renewals thereof in accordance with Section 7.1.
1.12 “Users” means the individuals who are authorized by Customer to use the Products, for whom subscriptions or licenses to use a Product have been ordered, and who have registered for user identifications and passwords. Users may include but are not limited to Customer’s employees, consultants, contractors and agents.
Only Customer and its Users may access and use the DevScore Products. Some Products may allow customer to designate different types of Users, in which case pricing and functionality may vary according to the type of User. All use of the Products by Customer and its Users must be within the authorized scope of use set forth in these Terms of Service and the applicable Order Form, which may include limits on the number and or types of Users or licenses, limits on storage capacity or Data Contributors, or other restrictions on the scope of use. Customer is responsible for all Users’ compliance with these Terms of Service and the applicable Order Form.
3. Use of the Products.
3.1 Access to Services. If Customer’s Products include Services, DevScore grants Customer a non-exclusive right to access and use the Services during the applicable Term in accordance with the scope of use set forth on the Order Form, these Terms of Service, and the Product documentation. If DevScore provides Customer with Software for any Services, Customer shall only use such Software with the Services, subject to these Terms of Service. Customer acknowledges that DevScore Services are on-line, subscription-based products and that DevScore may make changes to the Services from time to time, provided that such changes do not materially diminish the functionality of the Services. Customer also agrees that the Software might require access Tokens to customer software in order to operate.
3.2 Software License. If Customer’s Products include Software, DevScore grants Customer a limited, non-exclusive, non-licenseable and non-transferable license to install and use the Software during the applicable Term in accordance with the scope of permitted use set forth on the Order Form, these Terms of Service, and the Product documentation. The Software might require an API key or access Tokens in order to operate, which will be delivered as described in Section 4.1. Unless otherwise specified in the applicable Order Form, for each Software license that is purchased, Customer may install one production instance of the Software on its internal system or a system hosted by a third-party service provider on Customer’s behalf.
3.3 Restrictions. Except as otherwise expressly permitted in these Terms of Service, Customer shall not, and shall be responsible for ensuring that its Users do not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service provided to third parties, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit the scope of use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products.
3.4 Open Source Components. Customer acknowledges that certain software components of the Product may be covered by open source licenses as promulgated by the Open Source Initiative or as promulgated by the Free Software Foundation (“Open Source Component”). To the extent required by such open source license for the applicable Open Source Component, the terms of such license will apply to such Open Source Component in lieu of the relevant provisions of this Agreement. If such open source license prohibits any of the restrictions in this Agreement, such restrictions will not apply to such Open Source Component. DevScore shall provide Customer with a list of Open Source Components upon Customer’s request.
3.5 Credentials. Customer shall ensure that all Users keep their user IDs and passwords for the Products strictly confidential and not share such information with any unauthorized persons. Customer is responsible for any and all actions taken through use of Customer accounts and passwords. Customer agrees to notify DevScore immediately if Customer becomes aware of any unauthorized use of the Products.
3.7 Security. DevScore implements industry standard security procedures to help protect Source System Data from security attacks. However, Customer acknowledges that use of the Services necessarily involves transmission of Source System Data over networks that are not owned, operated or controlled by DevScore, and DevScore is not responsible for any Source System Data lost, altered, intercepted or stored across such networks. DevScore cannot guarantee that its security procedures will be error-free, that transmissions of Source System Data will always be secure or that unauthorized third parties will never be able to defeat DevScore security measures or those of DevScore’s third-party hosting providers. Customer is solely responsible for maintaining the security of its network and computer systems. DevScore assumes no responsibility or liability for backing up Source System Data as the primary source.
3.8 Use Verification. Customer shall ensure that its use and its Users’ use of the Products does not exceed the permitted scope of use set forth in the Order Form and these Terms of Service including the number of Data Contributors being tracked. Upon DevScore’s written request Customer shall provide to DevScore reasonable assistance and access to relevant documentation to verify Customer’s compliance. If DevScore determines that Customer has exceeded its permitted scope of use, DevScore will notify Customer of its determination and may require Customer to immediately discontinue the unpermitted use or terminate Customer’s access to the Service and use of the Products. DevScore may invoice Customer for additional User licenses or subscriptions or number of Data Contributors commensurate with Customer’s actual past use and Customer shall pay DevScore’s invoice on receipt. DevScore and Customer may mutually agree to amend the Order Form to reflect Customer’s actual use on a going forward basis.
3.9 Support and Maintenance. During the Term, DevScore shall provide support and maintenance as part of the Products at no additional charge and to the best of its ability without any guarantees or service level agreements. DevScore will only support the current version of the Software.
4. Acceptance, Delivery and Payment.
4.1 Acceptance and Delivery. The Product will be deemed accepted upon electronic availability and Customer retains all Product warranties herein notwithstanding acceptance. DevScore shall deliver the applicable API key(s) (in the case of Software) or login instructions (in the case of Services) to the email addresses specified in the Order Form. All deliveries will be electronic. Customer is responsible for installation of any downloadable Software if such software is required, and Customer acknowledges that DevScore has no further delivery obligation with respect to downloadable Software.
4.2 Payment. Customer agrees to pay all fees in accordance with the Order Form (“Fees”). Unless otherwise specified in the Order Form, Customer shall pay all Fees due in U.S. dollars within thirty (30) days from the invoice date. Unpaid Fees may accrue late charges at the lower of five-percent (5%) per month or the maximum rate permitted by law. Other than as expressly set forth in Sections 7.3 and 10.1, all amounts are non-refundable, non-cancelable and non-creditable. The fees set forth on the Order Form are in consideration of the current version of the Products and Customer acknowledges that it is not relying on future availability of any Products beyond the current Term or any Product upgrades or feature enhancements in consideration of the fees paid for the Term.
4.3 Taxes. The Fees exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes must be collected and remitted to a taxing authority by DevScore, DevScore agrees to include such taxes or duties as a separate line item on the applicable invoice and Customer agrees to pay to DevScore the amount of such taxes or duties in addition to the Fees owed. Notwithstanding the foregoing, in the event Customer has obtained an exemption certificate for taxes or duties that would otherwise be imposed on the Fees paid hereunder, Customer may provide a copy of the exemption certificate to DevScore and DevScore will not include such taxes or duties on the applicable invoice. If taxes or duties are added to an invoice and collected by DevScore but are later determined to not be owed by Customer, DevScore agrees to provide Customer with available backup documentation to enable Customer to seek a refund or credit for the amount so paid from any relevant taxing authority if such a refund or credit is available.
5. Ownership and Feedback.
The Products are made available on a limited license or access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in these Terms of Service, DevScore and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to DevScore Products, DevScore Services, and DevScore Technology and Customer Account Data. No work product of any kind is provided under this Agreement or any other agreement. At no time during or after the term of this agreement shall any artifact exist that could be considered Customer property other than the aforementioned Source System Data. From time to time, Customer may choose to submit feedback or Product enhancement requests in the course of using such Products and Services. Customer hereby assigns to DevScore all right, title and interest in and to any suggestions, enhancement requests, communications, recommendations or other advice or feedback (“Feedback”) that it or its Users provide to DevScore relating to the Products or any of the DevScore Technology made available to Customer or its Users, or the Services provided by DevScore to Customer hereunder. Feedback specifically excludes Source System Data or Customer Confidential Information.
Except as otherwise set forth in these Terms of Service, each party agrees that all Confidential Information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party. Any DevScore Technology and any Product performance information relating to the Products shall be deemed Confidential Information of DevScore without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, if lawfully permitted, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
7. Term and Termination.
7.1 Term. The Order Form and these Terms of Service shall remain in effect for the initial Term, unless sooner terminated as permitted herein.
7.2Termination. Either party may terminate an Order Form before the expiration of the Term if the other party materially breaches any of the terms of these Terms of Service and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate these Terms of Service before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
7.3 Effect of Termination. Upon termination of an Order Form, the access and use rights and license granted in Section 3 shall terminate immediately and Customer and its Users shall no longer have any right to use or access any Products, or any information or materials provided by DevScore in connection with the Products, including DevScore Confidential Information. DevScore will delete Source System Data from the Services within thirty (30) days, after the termination of the applicable Term upon Customer’s request and all Source System Data will be anonymized if Customer does not request deletion. If Customer terminates an Order Form as a result of DevScore’s uncured material breach, DevScore shall refund to Customer all amounts paid in advance for use of the Products after the termination date on a pro-rata basis. Except where an exclusive remedy may be specified in these Terms of Service, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms of Service, by law, or otherwise.
7.4 Survival. The following provisions will survive any termination or expiration of these Terms of Service: Sections 3.3, 3.6. 3.7, 3.8, 4.2, 4.3, 5, 6, 7, 8.2, 8.3, 9, 10, 11, 13 and 15.
8.1 DevScore Warranties. DevScore warrants that during the Term, the Products shall, when properly used in the manner authorized by these Terms of Service and the Order Form shall function in substantial conformity with the applicable Product documentation. For any uncured breach of a warranty above, as its sole remedy Customer may terminate the affected Order Form pursuant to Section 7.3. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity resulting from a modification of or defect in the Products that is made or caused by any person other than DevScore or a person acting at DevScore’s direction. Warranty is fully excluded in cases of free-of-charge (trial) use of the Product.
8.2 Customer Warranties. Customer represents and warrants that the Source System Data used by Customer in connection with this Agreement does not and will not during the term of this Agreement violate any applicable law or regulation and that Customer has obtained any necessary consents to use the Source System Data. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, in addition to any other remedies available at law or in equity, DevScore will have the right to immediately, in DevScore’s sole discretion, suspend any related Services if deemed reasonably necessary by DevScore to prevent any harm to DevScore or its business.
8.3 DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, DevScore DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DevScore DOES NOT GUARANTEE THAT (A) THE PRODUCTS WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT DevScore WILL CORRECT ALL ERRORS IN THE PRODUCTS; (B) THE PRODUCT WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; AND (C) THAT ANY PRODUCTS, INFORMATION OR OTHER MATERIAL CUSTOMER OBTAINS FROM DevScore UNDER THIS AGREEMENT, WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
9. Limitation of Liability.
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR COST OF COVER OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNTS ACTUALLY PAID AND TO BE PAID BY CUSTOMER DURING THE CURRENT CONTRACT YEAR. THIS SECTION 9 SHALL NOT APPLY TO (A) AMOUNTS OWED BY CUSTOMER UNDER ANY ORDER FORMS, (B) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THESE TERMS OF SERVICE, (C) CUSTOMER’S BREACH OF SECTION 3, OR (D) EITHER PARTY’S BREACH OF SECTION 6.
By DevScore. DevScore agrees to defend, indemnify and hold harmless Customer from and against any loss, claim, demand, cost, liability, damage, judgment or settlement, including attorneys’ fees, arising from or relating to (i) any third-party claim alleging that a Product, when used as authorized hereunder, (a) violates applicable law, or (b) infringes a patent or registered copyright, each enforceable in a country that is a signatory to the Berne Convention. DevScore’s indemnification obligation under this Section 10.1 is subject to DevScore receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse DevScore’s obligations except to the extent DevScore is materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) Customer’s reasonable cooperation. If Customer’s use of a Product is (or in DevScore’s opinion is likely to be) enjoined, if required by settlement, or if DevScore determines such actions are reasonably necessary to avoid material liability, DevScore may, at its option and in its discretion: (x) procure a license for the continued use of the Product in accordance with the terms of the applicable Order Form; (y) substitute a substantially functionally similar Product; or (z) terminate the Order Form and refund any prepaid amounts for the periods after the termination date. Notwithstanding the foregoing, DevScore’s indemnification obligations above do not apply: (1) if the Product is modified by Customer or a third party acting on its behalf, but solely to the extent the alleged infringement is caused by such modification; (2) if the Product is used in combination with any non-DevScore product, software or equipment without DevScore’s approval, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Products which gave rise to the claim; (4) to any claim arising as a result of Source System Data or circumstances covered by Customer’s indemnification obligations in Section 10.2; (5) to any unsupported release of the Product; (6) if Customer settles or makes any admissions with respect to a claim without DevScore’s prior written consent; or (7) third party products for which DevScore is not the licensor. THIS SECTION 10.1 STATES DevScore’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY DevScore UNDER THESE TERMS OF SERVICE. 10.2 By Customer. Customer agrees to defend, indemnify and hold harmless DevScore from and against any loss, claim, demand, cost, liability, damage, judgement or settlement, including attorneys’ fees, arising from or relating to any claim brought by a third party alleging that (i) Source System Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law including those related to data privacy, or (ii) Customer has provided DevScore with or access to personal information of any Data Subject without first obtaining the individual’s consent to provide the information to DevScore if required by applicable law or regulation. Customer’s indemnification obligation under this Section 10.2 is subject to Customer receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Customer’s obligations except to the extent Customer is materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) DevScore’s reasonable cooperation.
11. Governing Law.
The Order Form and these Terms of Service will be governed by and construed in accordance with the applicable laws of the State of Delaware, without giving effect to the principles of that State relating to conflicts of laws.
12. Publicity Rights.
Customer agrees that DevScore may identify Customer as a DevScore customer in its promotional materials. Customer may request that DevScore stop doing so at any time by submitting written notice via email to: firstname.lastname@example.org.
13. Export Restrictions.
Customer agrees to comply with any applicable export and import laws and regulations that apply to its use of the Products. Customer shall not (and shall 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 U.S. Commerce Department’s Table of Denial Order Forms or U.S. 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 to DevScore that (a) neither Customer nor any User is located in or will access the Products from any country that is subject to a U.S. trade embargo, and (b) neither Customer nor any User is on any restricted party list maintained by the U.S. government (e.g. the OFAC consolidated Personnel Screening List, BIS Denied Persons List or the Unverified List, or similar list attained by the export trade control agencies and offices of the US Government) and Customer agrees to notify DevScore promptly if Customer or any User appears on any such restricted party list during the Term.
14. Changes to these Terms of Service.
DevSocre may update or modify these Terms of Service from time to time, including any referenced policies and other documents. If DevScore modifies these Terms of Service during the Term, the modified version will only be effective upon the next renewal term. If Customer objects to the updated agreement, as its exclusive remedy, Customer may choose not to renew and terminate these Terms of Service and any Order Form.
15. General Provisions.
Any notice under these Terms of Service must be given in writing. Notice may be given to Customer via email or through Customer’s account. Notices will be deemed given upon the first business day after the notice is sent.
Customer may provide notice to DevScore Inc, via email to email@example.com. Customer notices sent to DevScore will be deemed given upon receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms of Service (except for a failure to pay Fees)
if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power of telecommunications or data networks or services, or refusal of a license by a government agency. Neither party may assign these Terms of Service to a third party without the other party’s prior written consent, which consent will not be unreasonably withheld. Either party may assign these Terms of Service to a third party which acquires substantially all of its assets or with which it merges without the other party’s consent. The assigning party must also ensure that the assignee agrees to be bound by the terms and conditions of these Terms of Service.
These Terms of Service is the entire agreement between DevScore and Customer relating to the Products and supersedes
all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by these Terms of Service. If any portion of these Terms of Service is found to be void or unenforceable, the remaining provisions of these Terms of Service shall remain in full force and effect.
No failure or delay by the injured party to these Terms of Service in exercising any rights under these Terms of Service shall operate as a waiver of such rights, nor shall any single or partial exercise of such rights preclude any other or further exercise of such rights or the exercise of any rights under these Terms of Service at law or equity. The parties are independent contractors. These Terms of Service shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.