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END USER LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY

This End User License Agreement (this “Agreement”) is entered into by and between Sonatype, Inc. ("Sonatype") and you (”Licensee”) and governs Licensee's use of and access to the Product to which Licensee has requested access. Sonatype and Licensee may be referred to individually in this Agreement as a “Party” or collectively as the “Parties.” Licensee agrees that, unless Sonatype has provided its express written consent, Sonatype’s competitors, including anyone acting on their behalf, are strictly prohibited from accessing the Products for any reason (trial or otherwise).   

LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT ALL ACCESS TO AND/OR USE OF THE PRODUCT IS STRICTLY SUBJECT TO THE TERMS OF THIS AGREEMENT AND, BY CLICKING ON THE “AGREE” (OR SIMILAR CONSENT) BUTTON, OTHERWISE CONSENTING TO THE TERMS OF THIS AGREEMENT, OR DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE PRODUCT, LICENSEE HEREBY ACCEPTS AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IN THE EVENT THAT LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ORGANIZATION OR ENTITY (COLLECTIVELY “COMPANY”), THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF COMPANY AND THE TERM “LICENSEE” IS HEREINAFTER DEEMED TO REFERENCE THE LICENSEE AND THE COMPANY.  LICENSEE MUST BE AUTHORIZED TO SIGN FOR AND BIND COMPANY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT.  IF LICENSEE DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS OR IS NOT AUTHORIZED TO SIGN FOR AND BIND COMPANY, DO NOT CLICK TO ACCEPT OR OTHERWISE DOWNLOAD, INSTALL OR IN ANY WAY ACCESS OR USE ALL OR ANY PORTION OF THE PRODUCT.  THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THE TERMS OF THIS AGREEMENT BY LICENSEE.

  1. DEFINITIONS

    “Data Feed” means any and all data maintained and/or curated by Sonatype that is made available by Sonatype to Licensee, whether via the Products, any Reports, or otherwise, including data and metadata related to open source projects, software, software components, software vulnerabilities, documentation, reports, text, images, sounds, video, and content.

    “Documentation” means the user guide, release notes, and technical specifications for the Products as may be updated by Sonatype from time to time.

    “Effective Date” means the date on which Licensee agrees to the terms and conditions of this Agreement.

    "Product" means Sonatype’s software application(s) (including any and all related Data Feed(s)) downloaded and used by Licensee pursuant to the terms of this Agreement.

    “Report” means any reports or other data generated by the Product by, for, and/or on behalf of Licensee.

  2. PRODUCTS

    1. License. Sonatype grants to Licensee a non-transferable, non-assignable, non-sublicensable, non-exclusive, limited license and right to access and use the Product solely for Licensee’s internal business purposes during the Agreement Term, subject to the terms of this Agreement and the applicable Documentation, and Licensee agrees that it will be responsible for all use of the Product on its behalf. Licensee agrees to maintain complete and accurate records with respect to matters necessary to ensure Licensee’s compliance with this Agreement. Sonatype will have the right, at its own expense and upon reasonable prior notice, to inspect and audit Licensee’s records related to matters covered by this Agreement.

    2. Restrictions. Licensee shall not, or permit any third party to (i) access the Product except as permitted herein and in the Documentation, (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or copy the Product or otherwise seek to obtain or use the source code, underlying ideas, algorithms or non-public APIs of the Product, (iii) remove, alter or obscure any proprietary notices, labels or marks on any component or portion of the Product, (iv) use the Product in a manner that breaches Section 10 below; (v) market, sell, resell, rent, sublicense, distribute or lease the Product, (vi) interfere with or otherwise disrupt the integrity, security-related features or performance of the Product, (vii) use the Product for the benefit of any third party including use of: (a) the Product to operate as a service bureau, ASP, or hosting service, or (b) any proxying, caching or other mechanism to provide any third parties with access to and/or use of the Product, (viii) gain, attempt to gain, unauthorized access to the Product or its related systems or networks, (ix) circumvent any measures present in the Product that regulate or in any other way limit access to or use or distribution of the Product, including disabling, obfuscating, tampering with, or in any way restricting the telemetry data tracking and collection functionality in the Product (including the Usage Reporting Feature defined in Section 3 below); (x) obtain access to the Data Feed via the use of non-public APIs or by replicating calls to the source of the Data Feed, (xi) access the Product, or permit access to the Product, for any benchmarking or competitive purposes, (xii) use the Product to transmit, distribute, scan or otherwise make available through or in connection with the Product, any binaries, artifacts, images, or components of software which are not owned by, licensed to or under the lawful possession of Licensee, (xiii) transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or through the Product, (xiv) embed the Product or any Reports into any Licensee product or service offering; and/or (xv) perform penetration testing, vulnerability testing or other security testing on the Product or otherwise attempt to gain unauthorized access to the Product.

    3. Reports. If a Product allows Licensee to generate Reports or to access any Data Feed(s), then Licensee may use and copy such Reports solely for its internal business purposes; provided that use of such Reports is subject to the restrictions set forth in Section 2(b).

  3. PRODUCT MAINTENANCE AND LICENSEE DATA. Sonatype will not provide any support and/or maintenance for the Product.  Licensee hereby grants to Sonatype a license to use, host, transmit and display any data of Licensee as reasonably necessary for Sonatype to provide and ensure the proper operation of the Product.  Moreover, Licensee hereby acknowledges and agrees that (a) Sonatype will compile, maintain, and use technical, statistical, metric, and performance information regarding Licensee’s use of the Product, including information that may identify Licensee and/or Licensee’s computer (such as the Internet Protocol Address), browser type, operating system, and application usage, along with other information regarding the operation of the Product on Licensee's computer systems ("Usage Information"), and (b) the Product contains a feature that sends Usage Information to Sonatype (the “Usage Reporting Feature”). 
  4. RESERVATION OF RIGHTS; OPEN SOURCE SOFTWARE.  Subject to the limited license rights expressly granted to Licensee herein, Sonatype, for itself and on behalf of its licensors reserves, and Licensee acknowledges and agrees that Sonatype owns, all right, title, and interest in and to the Product and the Documentation, including all improvements, modifications, derivative works and innovations of, to and/or involving the Product (collectively, the “Improvements”), including Improvements that result from suggestions, recommendations or other feedback provided to Sonatype by Licensee.  Moreover, Licensee acknowledges and agrees that the Product may be contain certain open source software that is licensed under the applicable open source license agreement (the “Open Source License”) and Licensee hereby agrees to the terms and conditions of each such Open Source License.  In the event of a conflict between the terms of an applicable Open Source License and the terms of this Agreement, the terms of the Open Source License shall control solely with respect to the applicable open source software. 
  5. CONFIDENTIALITY.  As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; provided that Sonatype’s Confidential Information includes technology and technical information, product plans, software, inventions, processes, formulas, the Product (including Improvements), and the Documentation.  Confidential Information shall not include information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.  The Receiving Party shall (i) use the same degree of care that it uses to protect its own confidential information of like kind (but in no event less than reasonable care) to not disclose any Confidential Information or use it for any purpose beyond the scope of this Agreement, and (ii) limit access to Confidential Information to individuals who need such access for purposes consistent with this Agreement, who have signed confidentiality agreements with the Receiving Party containing terms that are no less protective of the Confidential Information than those herein, and for whom the Receiving Party remains fully liable. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent not legally prohibited) and, in the event that the Disclosing Party wishes to contest the disclosure, reasonable assistance, at the Disclosing Party's cost.  Each Party acknowledges that the extent of damages in the event of any threatened or actual breach of this Section 5 would be difficult or impossible to ascertain and that there would be available no adequate remedy at law in the event of any such breach.  Each Party therefore agrees that, in the event it breaches this Section 5, the other Party will be entitled to specific performance and injunctive or other equitable relief, in addition to any other relief to which it may be entitled at law or in equity.  Any such relief shall be in addition to and not in lieu of any relief in the form of monetary damages.
  6. WARRANTIES AND DISCLAIMERS
    1. Licensee Warranties. Licensee represents and warrants that (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) its execution and performance of this Agreement will not conflict with or result in a breach or other violation of any agreement or other third party obligation by which it is bound; (iii) this Agreement will constitute a legal, valid and binding obligation enforceable against it in accordance with its terms; and (iv) it will comply with all applicable laws, including as set out in Section 10, in its performance of this Agreement. 
    2. General Disclaimers.  THE PRODUCT, DOCUMENTATION, AND ALL RELATED MATERIALS ARE PROVIDED “AS-IS, WITH ALL FAULTS” WITHOUT ANY WARRANTY AND SONATYPE MAKES NO, AND HEREBY DISCLAIMS, AND LICENSEE HEREBY WAIVES, ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT, THE PRODUCT, DOCUMENTATION, AND ALL RELATED MATERIALS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ERROR-FREE OR UNINTERRUPTED SERVICE. 
  7. LIMITATION OF LIABILITY.  IN NO EVENT WILL SONATYPE BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT.  SONATYPE’S AGGREGATE LIABILITY WITH RESPECT TO THE PRODUCT LICENSED, AND DOCUMENTATION AND ALL RELATED MATERIALS PROVIDED, TO LICENSEE UNDER THIS AGREEMENT SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED $1,000.00.
  8. TERM AND TERMINATION.  This Agreement commences on the Effective Date and continues until either this Agreement is terminated pursuant to this Section 8 or the start date of any license for the paid version of the Product purchased by Licensee from Sonatype (“Agreement Term”). Sonatype may terminate this Agreement immediately upon written notice to Licensee where: (a) Sonatype determines, in its discretion, that Licensee is in breach of this Agreement; or (b) Licensee becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Upon any Termination or expiration of this Agreement (for purposes of this Section, “Termination”), Licensee shall: (i) immediately discontinue all access to and use of Sonatype’s Confidential Information; (ii) delete the Sonatype’s Confidential Information from its computer storage or any other media, including online and off-line libraries; and (iii) return to Sonatype or, at Sonatype’s option, destroy, all copies of Sonatype’s Confidential Information then in its possession.
  9. NOTICES, GOVERNING LAW AND JURISDICTION
    1. Notices. Notices required or permitted by this Agreement shall be in writing and delivered as follows, with notice deemed given as indicated: (a) email with acknowledgement of receipt, (b) by overnight courier, upon written verification of receipt; or (c) by certified or registered mail, return receipt requested, upon verification of receipt.  Notices shall be sent as follows: (i) by Sonatype to Licensee’s last known address on file with Sonatype; and (ii) by Licensee to: Sonatype, Inc., 8161 Maple Lawn Boulevard, Suite 250, Fulton, MD 20759, Attention: Legal Department.  Either Party may designate a different address by providing written notice to the other Party.
    2. Governing Law; Jurisdiction; Jury Trial. The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to any conflicts of laws or choice of law rules, and each Party agrees to submit to the exclusive jurisdiction of the State and Federal courts located in the State of Maryland. The Parties expressly disclaim the applicability of the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods.  Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
  10. EXPORT AND SANCTIONS COMPLIANCE. Licensee shall comply with the export and sanctions laws and regulations of the United States and other applicable jurisdictions when performing its obligations and/or exercising its rights hereunder and Licensee: (a) represents and warrants that neither it nor any of its officers or directors is identified on any U.S. government list of persons or entities prohibited from receiving exports from the United States or otherwise subject to sanctions, and no such sanctioned party has an interest in Licensee, and (b) shall not permit the Product to be accessed or used in violation of any U.S. export and sanctions prohibition or restriction. Without limiting the generality of the foregoing, Licensee will not, directly or indirectly, remove or export from the United States or allow the export, re-export, or transfer (in country) of any part of the Product: (i) to any jurisdiction that is subject to comprehensive U.S. sanctions or any party ordinarily resident in such jurisdiction; (ii) to any party identified on (or controlled by one or more parties identified on) any U.S. government restricted party list, including without limitation the U.S. Commerce Department’s Bureau of Industry and Security Denied Persons List, Entity List, and Unverified List or U.S. Treasury Department Office of Foreign Assets Control’s list of Specially Designated Nationals; (iii) 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 (iv) otherwise in violation of any export, sanctions import, or other trade restrictions, laws or regulations of any United States or applicable foreign governmental authority. In the event any activities contemplated by or undertaken in connection with this Agreement and any other agreements and documents delivered or executed in connection herewith become unlawful under Sanctions Laws or involve any activity sanctionable under Sanctions Laws (a “Sanctions Event”), Sonatype may immediately suspend its performance obligations under this Agreement and upon written notice to Licensee and/or terminate this Agreement.  Sonatype shall not be liable (for a refund or otherwise) to Licensee or any other third party with whom Licensee or any other party may have a contractual obligation related to this Agreement as a result of its suspension and/or termination of the Agreement due to the occurrence of a Sanctions Event. “Sanctions Laws” mean the sanctions laws or regulations administered by the U.S. government (including the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury), the European Union or its member states, Her Majesty’s Treasury, the United Nations Security Council, or any other relevant sanctions authority.
  11. GENERAL
    1. Relationship of the Parties; Government End Users. The Parties will perform hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent between the Parties.  There are no third-party beneficiaries to this Agreement, and the Parties acknowledge that this Agreement is intended solely for the benefit of the Parties and nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, any legal or equitable right whatsoever to enforce any provision of this Agreement.  The Product is commercial computer software developed fully at private expense.  If Licensee is or becomes an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product and Documentation, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited.
    2. Waiver and Cumulative Remedies; Severability. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    3. Assignment. Licensee may not assign this Agreement, in whole or in part, to any third party without the express prior written consent of Sonatype, which may be withheld at Sonatype’s sole and absolute discretion.  Any assignment in violation of the foregoing provision shall be void and of no effect and will be deemed to be an irremediable material breach of this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their permitted assigns.
    4. Headings; Contract Interpretation. The captions to the sections of this Agreement are not a part of this Agreement but are merely guides to assist in locating and reading the sections hereof. The terms “this Agreement,” “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation.”
    5. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of each Party; provided that Sonatype reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Product at any time, effective upon provision of an updated version of this Agreement, including posting such new version the url.  Licensee is responsible for regularly reviewing this Agreement, and continued use of the Product after any such changes shall constitute Licensee’s consent to such changes.