Application Health-Check Terms of Service

READ THESE TERMS OF SERVICE CAREFULLY.

BY CLICKING ON THE “I ACCEPT” (OR SIMILAR CONSENT) BUTTON OR ACCEPTING OR USING ALL OR ANY PORTION OF THE INSIGHT SERVICE, YOU ARE ACCEPTING ALL OF THESE TERMS OF SERVICE. YOU AGREE THAT THESE TERMS OF SERVICE ARE ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, DO NOT CLICK TO ACCEPT OR USE ALL OR ANY PORTION OF THE INSIGHT SERVICE. YOU WILL NOT BE GIVEN ACCESS TO ANY INSIGHT SERVICE UNLESS YOU ACCEPT THESE TERMS OF SERVICE.

IF YOU WISH TO USE THE INSIGHT SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THESE TERMS OF SERVICE. THE LICENSES GRANTED AND SERVICES PROVIDED UNDER THESE TERMS OF SERVICE ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH SONATYPE FOR USE OF INSIGHT SERVICES, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS HEREIN.

These Sonatype Insight Service Terms of Service for Application Health Check (“Terms of Service”) are entered into by and between Sonatype, Inc. (“Sonatype”) and the customer (individual or entity) that has procured Sonatype’s Insight data service (the “Insight Service”) for use as an end user (“Customer”). “Effective Date” means the date on which Customer accepts these Terms of Service.

1. Insight Service. Customer may access and use Insight Service solely for its own benefit and in accordance with these Terms of Service, the end user technical documentation provided with the Insight Service and any scope of use restrictions designated by Sonatype at the time access is granted.

2. General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, distribute, market, commercialize, provide access to or sublicense the Insight Service to a third party; (b) use the Insight Service to provide, or incorporate any Insight Service into any product or service provided to, a third party, (c) reverse engineer, decompile, disassemble, or otherwise seek to use or obtain the source code or non-public APIs to the Insight Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Sonatype), (d) modify the Insight Service, or create any derivative product from any of the foregoing, (e) remove or obscure any proprietary or other notices contained in the Insight Service (including any reports or data printed from Insight Service), or (f) publicly disseminate information regarding the performance of the Insight Service.

3. Customer Data.

3.1 Customer Data. In connection with Customer’s use of the Insight Service under these Terms of Service, Customer will provide Customer Data to Sonatype. “Customer Data” means any business information, such as Internet Protocol address(es) or other data of any type which is provided by Customer to Sonatype in connection with Insight Service, including information input by Customer, or provided to Sonatype for input, into the Insight Service. Customer hereby authorizes Sonatype to use such data, solely to the extent necessary to provide Insight Services to Customer. For the avoidance of doubt, except for the limited rights granted herein, Customer retains all right, title and interest in and to the Customer Data (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights).

3.2 Data Representations. Customer shall ensure that Customer’s use of Insight Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Sonatype that Customer has sufficient rights in the Customer Data to grant the rights granted to Sonatype in this Section 3 and that the rights granted to Sonatype for the Customer Data does not infringe the rights of any third party. Sonatype has no obligation to store any Customer Data or to store or deliver any Customer Data to Customer. Sonatype may destroy the Customer Data at any time in its sole discretion.

4. Reports. The Insight Service allows Customer to generate reports or data through the use of the Insight Service (collectively, “Reports”). Customer may use and duplicate Reports for any internal business purpose, but use of Reports is subject to the same restrictions as use of the Insight Service as set forth in Section 2 (General Restrictions).

5. Ownership. Notwithstanding anything to the contrary contained herein, Sonatype and its suppliers have and will retain all rights, title and interest in and to the Insight Service (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). Customer acknowledges that it is obtaining only a limited right to access the Insight Service, and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to Customer under these Terms of Service or otherwise. All copies, improvements, updates, modifications or enhancements of the Insight Service shall remain the property of Sonatype (including any changes which incorporate any ideas, feedback or suggestions of Customer). All rights not granted by Sonatype are reserved.

6. Term of Agreement.

6.1 Term and Termination. These Terms of Service are effective as of the date they are accepted and expire on such date on which all of Customer’s rights to access or use the Insight Service have terminated (the “Term”).

6.2 Survival. Sections 2 (General Restrictions), 3.2 (Data Representations), 4 (Reports), 5 (Ownership), 6 (Term of Agreement), 7 (Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Confidential Information) and 10 (General) shall survive any termination or expiration of these Terms of Service.

7. Warranty Disclaimer.

7.1 General Disclaimer. THE INSIGHT SERVICE AND ALL REPORTS ARE PROVIDED “AS IS”. NEITHER SONATYPE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

7.2 Reports Disclaimer. Without limiting the above disclaimer in Section 7.1, the following additional disclaimers apply to any Reports: SONATYPE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY INFORMATION PROVIDED IN REPORTS, INCLUDING THE ACCURACY OR LEGALITY OF SUCH INFORMATION. Customer should further be aware that the license attribute, security vulnerability and other information in Reports is based solely on publicly available information. Such information has inherent limitations and may not be accurate or complete. Customer should independently review each open source software component and applicable license Customer is considering using within Customer’s environment or in any product or service. In addition, Reports may refer to the terms of certain open source software licenses but these Reports do not constitute legal advice or guidance. Customer should read each open source software license in full and consult with an attorney regarding the meaning of any open source software license.

8. Limitation of Remedies and Damages. SONATYPE SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, 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. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, SONATYPE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SONATYPE UNDER THESE TERMS OF SERVICE. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in these Terms of Service is found to have failed of its essential purpose.

9. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any services, software, documentation or technical information provided by Sonatype (or its agents), performance information relating to the Insight Service shall be deemed Confidential Information of Sonatype 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: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and 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.

10. General.

10.1 Assignment. These Terms of Service will bind and inure to the benefit of each party’s permitted successors and assigns. Sonatype may assign these Terms of Service to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Sonatype’s assets or voting securities. Customer may not assign or transfer these Terms of Service, in whole or in part, without Sonatype’s prior written consent. Any attempt by Customer to transfer or assign these Terms of Service without such written consent will be null and void.

10.2 Severability. If any provision of these Terms of Service shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms of Service shall otherwise remain in effect.

10.3 Governing Law; Jurisdiction and Venue. These Terms of Service shall be governed by 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. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.

10.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce these Terms of Service will be entitled to recover its attorneys’ fees and costs in connection with such action.

10.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address provided by each party in connection with registration for the Insight Service and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

10.6 Amendments; Waivers. Sonatype may supplement, modify, or amend these Terms of Service in its sole discretion by providing notice to Customer or posting the revisions to Sonatype’s website, provided that if Customer is accessing the Insight Services as part of a paid subscription to a Sonatype product or service, changes to these Terms of Service will take effect upon a renewal of Customer’s subscription. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms of Service, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede these Terms of Service, and any such document relating to these Terms of Service shall be for administrative purposes only and shall have no legal effect.

10.7 Entire Agreement. These Terms of Service are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of these Terms of Service. Customer acknowledges that Sonatype offers subscription-based products and that, in order to provide improved customer experience, Sonatype may make changes to Sonatype products (including the Insight Service).

10.8 Independent Contractors. The parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

10.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms of Service if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

Sonatype Application Health Check Terms of Service 2012 07 31