Last Updated –  THE FOLLOWING TERMS OF SERVICE (THESE “TOS”) SHALL BE DEEMED INCORPORATED BY REFERENCE INTO EACH ORDER (AS DEFINED BELOW) BETWEEN CODEFRESH, INC. A DELAWARE CORPORATION (“CODEFRESH”) AND THE LICENSEE IDENTIFIED THEREIN (“LICENSEE” OR “YOU”). YOUR RIGHT TO ACCESS AND USE THE SERVICE (AS DEFINED BELOW), WHETHER OR NOT AN ORDER HAS BEEN EXECUTED BETWEEN CODEFRESH AND YOU (OR AN ENTITY THAT YOU REPRESENT), IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TOS. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND AND ABIDE BY THESE TOS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS (AS DEFINED BELOW) WHO ACCESS THE SERVICE ON BEHALF OF SUCH COMPANY OR ENTITY TO THESE TOS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TOS, YOU MAY NOT USE THE SERVICES.
Acceptance of Terms. CodeFresh provides its Services to you through its web site located at https://codefresh.io (the “Site”), pursuant to these TOS. The “Service” includes (a) the Site, (b) CodeFresh’s build, test, and deployment docker container software tools, services and related technologies, and (c) all software (including the Software, as defined below), data, documentation, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “CodeFresh Content”). By entering into a Service order form, or other ordering document, web-based or email-based ordering mechanism or registration process (each an “Order”) or otherwise downloading, accessing or using the Service, Licensee unconditionally accepts and agrees to all of the terms of these TOS. Licensee represents that it has the authority to bind itself and its affiliates to the terms of these TOS, and, accordingly, the term “Licensee” shall refer to such entity. If Licensee is an individual using the Service, the terms “Licensee” and “User” shall each apply to such individual using the Service for the purposes of these TOS. Capitalized terms not defined herein shall be given the meaning set forth in the applicable Order. These TOS shall apply to all use by Licensee and Users (as defined below) of the Service. “User” means an individual who is authorized by Licensee to use the Service, for whom Licensee (or CodeFresh at Licensee’s request) has supplied a user identification and password either manually or using a Non-CodeFresh Application (as defined below). Users may include, for example, Licensee’s employees, consultants, contractors and agents, and third parties that Licensee transacts business. CodeFresh may change these TOS from time to time by providing Licensee and Users at least thirty (30) days’ notice either by emailing the email address associated with Licensee’s or User’s account or by posting a notice on the Service. The revised TOS shall become effective thirty (30) days after CodeFresh posts the updated TOS on the Service or e-mails Licensee and/or Users notice of a change to these TOS. If any change to these TOS is not acceptable to a Licensee or a User, such User shall stop using the Service or, in the case of Licensee, shall send a cancellation e-mail to unsubscribe@codefreshio.
Trial License. From time to time, Licensee may be invited to try certain products at no charge for a free trial or evaluation period or if such products are not generally available to licensees (collectively, “Trial License”). Trial Licenses will be designated or identified as beta, pilot, evaluation, trial or the like. Notwithstanding anything to the contrary, Trial Licenses are licensed for Licensee’s internal evaluation purposes only (and not for production use), are provided “as is” without warranty or indemnity of any kind, and may be subject to additional terms. Unless otherwise stated, any Trial Licenses shall expire thirty (30) days from the trial start date. Notwithstanding the foregoing, CodeFresh may discontinue Trial Licenses at any time at its sole discretion and may never make any Trial Licenses generally available. CodeFresh will have no liability for any harm or damage arising out of or in connection with any Trial Licenses.
License and Restrictions; Licensee and User Obligations with Regard to Use of the Service.
- License. Any software that may be made available by CodeFresh in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to all the terms of these TOS and payment of all fees described in an Order, during the Term (as defined below) CodeFresh grants Licensee and each User a non-sublicensable, non-exclusive, non-transferable license to use the object code of any Software and CodeFresh Content solely in connection with the Service and any terms and procedures CodeFresh may prescribe from time to time.
- Restrictions. Subject to these TOS, Licensee and Users may access and use the Service and CodeFresh Content only for lawful purposes. All rights, title and interest in and to the Service and its components, CodeFresh Content and all related intellectual property rights will remain with and belong exclusively to CodeFresh. Licensee shall maintain the copyright notice and any other notices that appear on the Service on any copies and any media. Neither Licensee nor any User shall (or allow any third party to) (i) modify, reverse engineer or attempt to hack or otherwise discover any source code or underlying ideas or algorithms of the Service (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) sell, resell, license, sublicense, provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Service or CodeFresh Content for the benefit of any third party, (iii) use the Service or CodeFresh Content, or allow the transfer, transmission, export, or re-export of the Service or Content or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, (iv) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (v) use the Service to store or transmit Malicious Code (as defined below), (vi) interfere with or disrupt the integrity or performance of the Service or its components, (vii) attempt to gain unauthorized access to the Service or its related systems or networks, (viii) permit direct or indirect access to or use of any Service or CodeFresh Content in a way that circumvents a contractual usage limit, (ix) copy the Service or any part, feature, function or user interface thereof, access the Service in order to build a competitive product or service or (x) use the Service for any purpose other than as expressly licensed herein. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
- Licensee Obligations with Regard to Use of the Service. Any User of the Service must be thirteen (13) years old or older to use the Service. Licensee shall (i) be responsible for Users’ compliance with these TOS, (ii) be responsible for the quality and legality of Licensee Content (as defined below) and the means by which Licensee acquired Licensee Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify CodeFresh promptly of any such unauthorized access or use, (iv) use the Service only in accordance with the CodeFresh’s Service documentation and applicable laws and government regulations, (v) comply with terms of service of Non-CodeFresh Applications (as defined below) with which Licensee uses the Service. Licensee and Users are responsible for maintaining the security of User’s accounts and passwords. CodeFresh cannot and shall not be liable for any loss or damage from Licensee’s or any User’s failure to comply with this security obligation. Licensee and Users may not access the Service, if they are CodeFresh’s direct competitor, except with CodeFresh’s prior written consent. In addition, Licensee and Users may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. “Licensee Content” means all data, software, information, text, audio files, graphic files, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service submitted by or for Licensee to the Service or collected and processed by or for Licensee using the Service, excluding CodeFresh Content and Non-CodeFresh Applications. “Non-CodeFresh Applications” means a web-based or offline software application that is provided by Licensee or a third party and interoperates with the Service.
- Enforcement. Licensee shall ensure that all Users comply with the terms and conditions of these TOS, including, without limitation, with Licensee’s obligations set forth in Sections 3(b) and 3(c). Licensee shall promptly notify CodeFresh of any suspected or alleged violation of these TOS and shall cooperate with CodeFresh with respect to: (i) investigation by CodeFresh of any suspected or alleged violation of these TOS and (ii) any action by CodeFresh to enforce these TOS. CodeFresh may, in its sole discretion, suspend or terminate any User’s access to the Service with or without written notice (including, but not limited to e-mail) to Licensee in the event that CodeFresh reasonably determines that a User has violated these TOS. Licensee shall be liable for any violation of these TOS by any User.
Provision of the Service; Support.
- As part of the registration process, each User shall generate a user name and password for its CodeFresh account (“Account”) either manually or through a Non-CodeFresh Application. Each User is responsible for maintaining the confidentiality of their login, password and Account and for all activities that occur under any such logins or the Account. CodeFresh reserves the right to access Licensee’s and any User’s Account in order to respond to Licensee’s and Users’ requests for technical support. CodeFresh has the right, but not the obligation, to monitor the Service, CodeFresh Content, or Licensee Content. Licensee further agrees that CodeFresh may remove or disable any CodeFresh Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such CodeFresh Content), or for no reason at all.
- CodeFresh will (a) make the Service available to Licensee and its Users pursuant to these TOS and the applicable Order, (b) provide community-based support via CodeFresh’s Discuss site located at https://discuss.CodeFresh.com (or successor URL) for the Service to Licensee and Users at no additional charge, and/or upgraded support if purchased pursuant to an Order, and (c) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which CodeFresh shall give at least eight (8) hours electronic notice and which CodeFresh shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond CodeFresh’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving CodeFresh’s employees), Internet service provider failure or delay, Non-CodeFresh Application, or denial of service attack.
- Licensee understands that the operation of the Service, including Licensee Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to CodeFresh’s third party vendors and hosting partners solely to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, Licensee acknowledges that Licensee bears sole responsibility for adequate backup of Licensee Content. CodeFresh will have no liability to Licensee for any unauthorized access or use of any of Licensee Content, or any corruption, deletion, destruction or loss of any of Licensee Content.
- Licensee shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Licensee shall be responsible for ensuring that such Equipment is compatible with the Service (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in CodeFresh’s published policies then in effect. Licensee shall also be responsible for maintaining the security of the Equipment, Licensee’s Account, all passwords (including but not limited to administrative and User passwords) and files, and for all uses of Licensee Account or the Equipment with or without Licensee’s knowledge or consent.
Fees and Payment.
- Licensee shall pay CodeFresh the fees set forth in an Order in accordance with the terms set forth therein; provided that CodeFresh may change any applicable fees upon thirty (30) days’ notice at any time and such new fees shall become effective for any subsequent renewal Term. All payments shall be made in U.S. dollars. Any payments more than thirty (30) days overdue will bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings and the like, as well as all pre-approved out of pocket expenses incurred by CodeFresh in connection with any consulting and/or support services, promptly upon invoice. If Licensee is paying any fees by credit card, Licensee shall provide CodeFresh complete and accurate information regarding the applicable credit card. Licensee represents and warrants that all such information is correct and that Licensee is authorized to use such credit card. Licensee will promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Licensee hereby authorizes CodeFresh to bill such credit card in advance on a periodic basis in accordance with the terms of these TOS and an Order, and Licensee further agrees to pay any charges so incurred. Licensee will maintain, and CodeFresh will be entitled to audit, any records relevant to Licensee’s use of the Service hereunder. CodeFresh may audit such records on reasonable notice at CodeFresh’s cost (or if the audits reveal material non-compliance with these TOS, at Licensee’s cost).
- For any upgrade in a subscription level for a month-to-month service plan, CodeFresh shall automatically charge Licensee the new subscription fee, effective as of the date the service upgrade is requested and for each subsequent one-month recurring cycle pursuant to the billing method applicable to Licensee. If CodeFresh is providing Licensee the Service pursuant to a yearly service plan, CodeFresh will immediately charge Licensee any increase in subscription level plan cost pursuant to the billing method applicable to Licensee, prorated for the remaining Term of Licensee’s yearly billing cycle; provided, however, any decrease in a subscription level plan cost shall only take effect upon the renewal date of the then current yearly service plan. Licensee’s downgrading its subscription level may cause the loss of features or capacity of Licensee’s Account. CodeFresh does not accept any liability for such loss.
- If any amount owing by Licensee under these TOS for the Service is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts Licensee has authorized CodeFresh to charge to Licensee’s credit card), CodeFresh may, in its sole discretion and without limiting its other rights and remedies, suspend Licensee’s and any User’s access to the Service and/or otherwise limit the functionality of the Service until such amounts are paid in full.
- Licensee agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by CodeFresh regarding future functionality or features.
Term; Expiration and Termination. These TOS shall continue in effect for the term and any renewal term as specified in an Order (collectively, the “Term”). If either party materially breaches these TOS, the other party shall have the right to terminate the applicable Order and in the case where no Order exists, these TOS (and, in each case, all licenses granted herein) upon thirty (30) days (ten (10) days in the case of non-payment and immediately in the case of a breach of Sections 3(b)) written notice of any such breach, unless such breach is cured during such notice period. In the case of a free trial or CodeFresh otherwise providing the Service at no cost to a Licensee, CodeFresh shall have, upon Licensee or any Users failing to use the Service for more than six (6) consecutive months, the right, in its sole discretion, to terminate all User Accounts of Licensee and terminate Licensee’s and all Licensee’s Users’ access to and use of the Service without notice. Upon expiration or termination of an Order or these TOS, Licensee shall immediately be unable access and use the Service, all Licensee Content may be deleted from the Service at CodeFresh’s sole discretion (such information cannot be recovered once Licensee’s Account or any User Account is terminated) and Licensee shall return or destroy all copies of all CodeFresh Content and all portions thereof in Licensee’s possession and so certify to CodeFresh, if such certification is requested by CodeFresh. Sections 3(b) and 5 through 14 of these TOS, shall survive termination or expiration of these TOS. Termination is not an exclusive remedy and all other remedies shall be available whether or not termination occurs.
Indemnification. Licensee and each User shall defend, indemnify and hold harmless CodeFresh from all damages, settlements, attorneys’ fees and expenses related to any third-party claim, suite or demand (i) arising from Licensee or any User’s use of the Service or CodeFresh Content in breach of these TOS or in violation of applicable law, or (ii) alleging that the Licensee Content infringes or misappropriates such third party’s intellectual property rights or violates applicable law; provided Licensee is promptly notified of any and all threats, suits, claims and proceedings related thereto and given reasonable assistance by CodeFresh (at Licensee’s cost). CodeFresh reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section 7. In such case, Licensee and Users agree to cooperate with any reasonable requests in assisting CodeFresh’s defense of such matter.
DISCLAIMER OF WARRANTIES. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY CODEFRESH OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND CODEFRESH’S REASONABLE CONTROL, BUT CODEFRESH SHALL USE REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE IN WRITING OR BY EMAIL OF ANY SCHEDULED SERVICE DISRUPTION. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CODEFRESH CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CODEFRESH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LICENSEE AND USERS ACKNOWLEDGE THAT CODEFRESH DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES CODEFRESH MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY LICENSEE OR USERS FROM CODEFRESH OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL CODEFRESH BE LIABLE TO LICENSEE, ANY USER OR ANY THIRD-PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES. INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES OR (B) FOR ANY DIRECT DAMAGES, COST, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S OR USER’S CLAIM OR, IF NO FEES APPLY, ONE HUNDRED DOLLARS (US$100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISK UNDER THESE TOS BETWEEN THE PARTIES AND PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TOS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTEES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE OR SOME USERS. IN THE STATES, CODEFRESH’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Proprietary Rights; Limited License to CodeFresh; Feedback.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, CodeFresh and its licensors reserve all of CodeFresh’s and its licensors right, title and interest in and to the Service, including all of CodeFresh’s and its licensors related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
- License to CodeFresh by Licensee to Host Licensee Content. Licensee hereby grants CodeFresh a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, limited-term license to host, copy, transmit and display Licensee Content that Licensee or any User posts to the Service, solely as necessary for CodeFresh to provide the Service in accordance with these TOS. Subject to the limited licenses granted herein, CodeFresh acquires no right, title or interest from Licensee or Licensee’s licensors under these TOS in or to Licensee Content.
- License by Licensee to Use Feedback. Licensee hereby grants to CodeFresh a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or Users relating to the operation of the Service.
Confidentiality. Any technical, financial, business or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”) shall be held in confidence and not disclosed and shall not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing. For clarity, the Service and CodeFresh Content shall be deemed Confidential Information of CodeFresh whether or not otherwise designated as such. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). These obligations will not apply to information that (i) was previously known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure, (ii) is generally and freely publicly available through no fault of the Receiving Party, (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction, or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.
Protection of Confidential Licensee Content; Security. CodeFresh shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Content that is Licensee’s Confidential Information (“Confidential Licensee Content”). Those safeguards shall include, but will not be limited to, measures for preventing access, use, modification or disclosure of Confidential Licensee Content by CodeFresh’s personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 11 (Confidentiality) above, or (c) as Licensee expressly permits in writing.
Digital Millennium Copyright Act (DMCA) Policy.
- DMCA Notification. CodeFresh complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Service, you may contact our Designated Agent at the following address:
CodeFresh, Inc. 196 Castro St., Suite A Mountain View, CA 94041 E-mail: email@example.com Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Repeat Infringers. CodeFresh will promptly terminate without notice the accounts of users that are determined by CodeFresh to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Customer Data or Customer Applications removed from the Service more than twice.
Miscellaneous. Neither the TOS nor the licenses granted hereunder are assignable or transferable by either party without the prior written consent of the other party, except that either party may assign and transfer these TOS without consent to a successor to all or substantially all of its assets or business; any attempt to assign in violation of the foregoing shall be void. There are no third-party beneficiaries under these TOS. The parties are independent contractors. These TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of these TOS shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these TOS shall otherwise remain in full force and effect and enforceable. These TOS shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any proceeding relating to these TOS or the subject matter hereof shall be brought only in federal or state court in the County of San Francisco, California, and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. The prevailing party in any action to enforce these TOS or any Order will be entitled to recover its attorney’s fees and costs in connection with such action. The Service is controlled and offered by CodeFresh from its facilities in the United States, and the CodeFresh servers and data centers are located in the United States. If Licensee chooses to access and use the Service from outside the United States, then Licensee and all Users acknowledge that Licensee and Users are transferring Licensee Content into the United States for storage and processing and that Licensee is responsible for compliance with all local laws applicable to such transfer, storage and processing. Any waivers or amendments shall be effective only if made in writing. These TOS and each Order is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these TOS. Licensee represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds. Except for the payment obligations hereunder, non-performance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, or any other reason where failure to perform is beyond the reasonable control of and not caused by the negligence of the non-performing party. Except as otherwise specified in these TOS, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Licensee shall be addressed to the relevant billing contact designated by Licensee on an Order. All other notices to Licensee shall be addressed to the relevant contact designated by Licensee on an Order. All notices to CodeFresh shall be sent to CodeFresh to the applicable CodeFresh contact at the address set forth on an Order.