Assembla Private Cloud License Agreement

Notice: The individual who accepts this Agreement on behalf of an Assembla customer that is a company or other legal entity represents to Assembla that he or she has the authority to legally bind that entity to this Agreement.

The Software described in this Software License Agreement and the Order is licensed on the condition that the Customer agrees to each and every term of this Software License Agreement.

Software License Agreement

This Software License Agreement (this “SLA”) is between Assembla, Inc. a Delaware corporation having an office at 122 E. Houston Street, 2nd Floor, San Antonio, Texas 78205 (“Assembla”) and the Assembla customer who accepts this SLA by following Assembla’s online acceptance process or other Assembla signing process (the “Customer”).


1. AGREEMENT

This SLA states the license and other terms, conditions, and restrictions applicable to the Assembla software identified in the online Web order form (or other ordering document prepared by Assembla and provided for your signature) that Customer submits to Assembla, either online or via another Assembla submission process (the “Order”). References in this SLA to the “Agreement” mean the SLA, the Order, and any addenda, appendix, or exhibit attached to any of them, as any of them may be amended pursuant to Section 25.5 (Amendments). The Agreement is effective as of the date that customer submits the Order to Assembla in accordance with Assembla’s online order process (the “Effective Date”).

2. DEFINED TERMS

The following words, when capitalized, have the meaning stated:

Agreement has the meaning given in Section 1 (Agreement) above.

Business Day means Monday through Friday 9:00 a.m. – 5:00 p.m. United States Central time, excluding federal public holidays in the United States.

Confidential Informationmeans all information disclosed by one party to the other, on any media, whether before or after the effective date of the Agreement that: (i) the recipient should reasonably understand to be confidential, such as (A) for Customer, all Customer Information, and (B) for Assembla, unpublished prices and other terms of service, audit and security reports, product development plans, network configuration, vendors and other proprietary information or technology, or (ii) is marked or otherwise conspicuously designated as confidential. Information that is independently developed by a party without reference to the other's Confidential Information, or that becomes available to a party, other than through violation of this Agreement or applicable law, is not "Confidential Information" of the other party. Confidential Information includes information disclosed by making tangible objects or premises available for inspection.

Documentationmeans the general release version of the user and administrator materials and information describing the general release Software. The term “Documentation” does not include any FAQ, Whitepapers, or marketing materials.

Effective Date has the meaning stated in Section 1 (Agreement) above.

Enhancement has the meaning given in Exhibit A, Support Terms.

Maintenance means Updates and Enhancements to the Software provided to Customer pursuant to Exhibit A, Support Terms.

Malware means viruses, spyware, adware, or other unauthorized code or information that is designed to interrupt the normal use of the Software or the systems on which any part of the Software is installed, destroy or corrupt any data, or covertly transmit information regarding Customer or End Users to a third party.

Open Source Software License means a software license that requires the licensee to make software available in source code form or license the software on a royalty free basis.

Personal Data means any information about an identified or identifiable natural person that is transmitted to, stored, or otherwise processed by Assembla to provide Support.

Product means, collectively, the licenses for the Software and Support described in an Order.

Customer Information means all data or information that is processed by Customer using the Software or that is processed by Assembla as part of providing Support, including Personal Data.

End Users means Customer’s personnel who are authorized by Customer to use the Software.

Software means the general release version of the Assembla software described in an Order or made available for Customer’s use in connection with the subject matter of an Order, and related Documentation, but excluding any Third Party Technology as defined below. For clarity, the term “Software” includes all of the following made available to Customer by Assembla as part of Support, or otherwise: (i) Updates, Enhancements, and other modifications; (ii) any application programming interface (“API”) or other control plane, dashboard, or other interface; (iii) any online portal for the management of Customer’s account; and (iv) any analytics or other tools provided by Assembla for use with the Software or Support.

Support means technical assistance and Maintenance provided pursuant to Exhibit A, Support Terms.

Third Party Technology means software or other technology that Customer licenses directly from the third party licensor for use with the Software. Third Party Technology includes technology that Assembla offers as a license reseller for the third party, but that is covered by a separate end user license agreement between the licensor and Customer.

Unsupported has the meaning given Section 7 (Unsupported Software and Services).

Update has the meaning given in Exhibit A, Support Terms.

3. SOFTWARE LICENSE

3.1 General License Terms. The executable version of the Software is licensed to Customer on a non-exclusive basis solely for Customer’s internal use. The Software is licensed for a limited term unless the applicable Order expressly states that the license is “perpetual.” The term of each non-perpetual license is stated in the Order, or if no term is stated, is one year. The license may not be assigned except as part of an assignment of the Agreement that is permitted by Section 21 (Assignment/Subcontracting). Customer may permit the use of the Software only by End Users and may not otherwise sublicense or permit the use of the Software by any other person. The license is worldwide, subject to applicable export law; provided that Customer must notify Assembla if it installs the Software at any location not stated on the applicable Order. Customer may copy the Software as reasonably necessary for its licensed use, and may make one backup copy for use in the event the production version of the Software becomes unavailable.

The license is subject to the following conditions and restrictions:

  • User Seats. Customer may not permit the use of the Software by more individuals than the number of user seats Customer has purchased as reflected in an Order. A seat may be transferred from one individual user to another provided that the transfer is intended to be a permanent transfer and not a means of sharing a single seat. Customer must require each individual to establish a unique log in name and password.
  • High Risk Use. Customer may not use the Software in any situation where failure or fault of the Software could lead to death or serious bodily injury of any person or damage to tangible property or environmental damage;
  • Reverse Engineering. Customer may not reverse engineer, disassemble or decompile the Software or attempt to discover any underlying algorithm or method embodied by the Software except to the extent applicable law permits such activity notwithstanding this limitation, and then only on advance written notice to Assembla of at least thirty (30) days;
  • Modifications. Customer may not modify the Software, combine the Software with other software, or create any derivative works of the Software;
  • Competing Services. Customer may not use, and may not permit any person to use, the Software for the purpose of developing a competing software program or service; and
  • Performance Analysis. Customer may not publish any benchmarking results or other performance analysis.

3.2 Open Source. The Software may include software that is licensed under an open source license. Assembla will provide Customer with notice of any open source software and related license, attribution, and source code information in the Documentation provided with the Software. If there is a conflict between the license terms stated in the Agreement and the license terms applicable to any open source software, the open source software license terms will control as to the conflict.

4. SOFTWARE WARRANTY

4.1 Product Warranty and Remedies. Assembla warrants that for thirty (30) days from the delivery of the license for the Software, subject to the conditions and exclusions described below, that: (i) the general release version of Software will substantially conform to the applicable Documentation, and (ii) the media on which the Software is provided will be free from material defects. As Customer’s sole and exclusive remedies , and Assembla’s sole and exclusive obligations, for a breach of the warranty stated in this Section, Assembla will repair or replace the non-conforming element of the Software or re-deliver the Software on non-defective media, as applicable, provided that if repair or replacement is not commercially feasible then Assembla may terminate the applicable Order and related licenses and refund any pre-paid, unused license fees paid by Customer for the then-current term.

4.2 Conditions and Exclusions. As a condition to the warranty remedy under Subsection 4.1, Customer must give notice of the warranty breach during the warranty period or within ten (10) days after the end of the warranty period, and must cooperate with Assembla’s reasonable requests for information and assistance, including information necessary to reproduce any defect. The warranty does not apply to the extent a failure is due to: (i) Customer’s failure to comply with the installation, operation, environmental, and other requirements or specifications stated in the Order or the Documentation; (ii) fire, flood, or other casualty; (iii) any non-standard configuration or implementation of the Software implemented by Customer or implemented by Assembla at Customer’s request; or (iii) the interoperation between the general release version of the Software and any custom modules, non-standard extensions, or Unsupported technology element. In addition, the warranty does not apply if the failure is due to the interoperation between the Software and any Third Party Technology unless otherwise expressly agreed in the Order.

4.3 Integration Features. The Software may include integration features designed to enable the exchange of information between the Software and Third Party Technologies. Assembla’s integration features may be unavailable or may not work properly if the third party’s API is unavailable or if the third party modifies its API or services in a way that impacts the Assembla integration feature. Assembla will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability to Customer if there is a change in the service that creates an unreasonable cost or operational burden to Assembla. Customer’s obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features.

5. SUPPORT, SUPPORT WARRANTY

5.1 Support. Assembla will provide Support as described on Exhibit A, Support Terms, for the support term specified in the applicable Order, or where no support terms is specified as stated in Exhibit A.

5.2 Support Warranty. Assembla warrants that it will provide Support in a professional manner using personnel who have appropriate education, experience, and skill. Customer’s exclusive remedy for Assembla’s failure to meet its Support warranty stated in this Subsection is to require Assembla to correct or re-perform the deficient Support, or if Assembla fails to correct or re-perform the deficient Support, to terminate Support and receive a refund of any unused pre-paid Support fees. In addition, if Assembla’s failure to meet the Support warranty materially impairs the use of the Software or results in a material security vulnerability, Customer may terminate the Software license covered by the Support, and receive a refund of any prepaid, unused license fees (which for a perpetual license shall be based on an assumed five (5) year license life). To be eligible for a refund of fees described in this Subsection Customer must: (i) give Assembla reasonably prompt notice describing the warranty breach in reasonable detail; (ii) cooperate with any requests for information and cooperation by Assembla to diagnose the issue; including any effort to reproduce a Software failure; and (iii) give Assembla a reasonable period of at least thirty (30) days to correct or re-perform the deficient Support.

5.3 Implementation, Configuration, Training. If Customer purchases implementation, configuration, and training services, those services must be used within the time period specified in the Order, or if no time period is stated, within 90 days from the delivery of the Software license.

5.4 Other Services. Assembla is not obligated to provide any technical assistance, maintenance, or other services for the Software or other software or technology other than Support unless expressly stated in the Order. If Assembla provides any services it is not required to provide, the services are provided AS IS and AS AVAILABLE, with no representation or warranty whatsoever.

Other Warranties. Assembla makes the following additional warranties:

5.5.1 Malware. The Software will not include any Malware on delivery, and Assembla shall use reasonable commercial efforts to avoid introducing Malware to the Software or the systems on which the Software is installed. Assembla’s specific safeguards regarding Malware are described in its Security Materials to be provided to Customer on request as provided in Section 9 (Security).

5.5.2 Infringement. Customer’s use of the Software as permitted by the Agreement will not infringe on any third- party patents, copyrights, trademark, trade secrets or other intellectual property right of a third person, provided that Customer’s sole and exclusive remedy for a breach of this warranty is indemnification as provided in Section 17 (Indemnification) below.

5.5.3 Open Source Software. Customer’s use of the Software in unmodified form as permitted by the Agreement will not result in the licensing of any Customer software under an Open Source Software License.

6. FEES

6.1 Fees. Fees are stated in the applicable Order. Unless otherwise stated in the Order, Assembla may invoice its fees at the following times: (i) Order effective date for perpetual licenses, annual paid subscription licenses, annual paid support plans, and non-recurring fees such as implementation and set up fees; and (ii) monthly in advance for monthly paid subscription licenses. Fees are non-refundable except as expressly stated otherwise in this Agreement or the Order.

6.2 Expenses. Customer is not required to pay any Assembla expenses unless expressly required by an Order or other written agreement. If the Order includes Customer-paid travel expenses, Assembla may invoice its reasonable air and ground transportation, lodging, meals, and reasonable incidentals (such as fees for wifi connections). Assembla will provide receipts or other reasonably, customary evidence to support its expense invoices. Assembla may, at its option, invoice authorized travel expenses in advance of the travel, provided that Assembla must refund any collected amounts, less any non-refundable expenses already incurred, if Customer cancels the travel.

6.3 Taxes. Fees are stated exclusive of any sales, value added, use, excise, goods and services, import/export duties and levies, and like transactions taxes (“Sales Tax”). Customer must pay Assembla Sales Tax that Assembla is required to collect and remit unless Customer has provided reasonably satisfactory evidence of a tax exemption in advance of invoicing. Customer may not withhold any taxes from fee payments, except for withholding (or similar) taxes that Customer is legally required to withhold under laws applicable to Customer. If Customer withholds any taxes, it shall promptly provide documentation of the withholding as reasonably requested by Assembla, including documentation necessary to support Assembla’s claim for any foreign tax withholding credit.

6.4 Payments. Fees are due thirty (30) days from invoice date. Fees must be paid in U.S. Dollars unless another currency is stated in the Order. Unless otherwise agreed, Customer must establish and maintain authorizations necessary for Assembla to collect its invoices via ACH. Subject to Subsection 6.5 (Fee Disputes) Assembla may charge interest on overdue amounts at the greater of 1.5% per month or the highest non-usurious rate under applicable law. Subject to Subsection 6.5 (Fee Disputes), if any payment is more than fifteen (15) days past due and has not been cured within fifteen (15) days of Assembla’s notice of the overdue payment, Assembla may suspend all or any part of Customer’s licenses or Support services or begin legal collection efforts, or both. Assembla may charge Customer a reasonable fee to reinstate its licenses or Support services after a suspension, and may recover from Customer its reasonable expense of collection, including court costs and attorney fees.

6.5 Fee Disputes. Assembla may not charge late interest, suspend services, or pursue other collection activity for a period of thirty (30) days from the invoice due date with respect to any invoiced amount that Customer disputes in good faith, provided that: (i) Customer has given notice of the dispute prior to the invoice due date, (ii) Customer’s notice describes the grounds for the dispute in reasonable detail; (iii) Customer has timely paid undisputed amounts; and (iv) Customer cooperates with Assembla’s requests for information in connection with the dispute. Customer and Assembla shall negotiate in good faith to resolve the dispute during the thirty (30) day period. If the dispute is not resolved by the end of the thirty (30) day period, then each party is free to pursue resolution of the dispute using all legally available means.

7. UNSUPPORTED SOFTWARE AND SERVICES

Assembla may designate a non-standard configuration or implementation of Software or non-standard services that are requested by Customer (collectively “Unsupported” technology) as “non-standard”, “reasonable endeavors,” “unsupported,” “best efforts,” or with like designation in the Order, support ticket or other agreement or correspondence. Unsupported technology is not covered by warranties, service level commitments, security commitments, maintenance or support commitments, or indemnities, and may not be used to process or store Personal Data. If Customer requests assistance with Unsupported technology, Assembla will provide good faith technical assistance using its available personnel who have generalized skill and training in information technology systems. Otherwise Unsupported technology is provided AS IS and AS AVAILABLE with no representation or warranty whatsoever. Assembla is not responsible to Customer for any loss or damage arising from the provision of Unsupported technology.

8. THIRD PARTY TECHNOLOGY

Disclaimers

Referrals to Third Party Service Providers

9.3 Terms for Certain Third Party Technology

9.3.1. Perforce. If Customer purchases a Perforce license through Assembla, the end user license terms at https://www.perforce.com/terms-use#eula apply

9.3.2 CodeDX. If Customer purchase a CodeDX license through Assembla, the end user license terms at www.assembla.com/eula-codex apply

9.3.3 Other. Licenses purchased for other Third Party Technologies are subject to separate terms that are identified in the Order.

9. SECURITY

On request, Assembla will make available to Customer its materials documenting Assembla’s security safeguards (the “Security Materials”). Customer acknowledges that the Security Materials are sensitive Confidential Information of Assembla and may be view and distributed only within Customer’s organization on a need-to-know basis. Customer acknowledges that Assembla is not responsible for any loss or harm suffered by Customer or a User resulting from a security incident except to the extent the security incident results from Assembla’s failure to comply with the safeguards described in the Security Materials. Customer is responsible for determining if Assembla’s safeguards meet applicable regulatory standards and otherwise comply with Customer’s security requirements.

10. PRIVACY

Customer’s Personal Data is Customer’s Confidential Information covered by the Assembla commitments in Section 14 (Confidential Information). Assembla makes the following additional commitments regarding Customer’s Personal Data: (i) Assembla will provide Customer with access to the Personal Data as necessary for Customer to comply with applicable legal requirements for access, destruction, or modification of the Personal Data at the request of a data subject, and (ii) Assembla will notify Customer in writing without undue delay if it discovers that any Personal Data has been accessed, used, disclosed, destroyed or corrupted other than as permitted by the Agreement, will provide all information reasonably available to it regarding the reported event, and will cooperate with Customer’s reasonable requests to mitigate and remediate the reported event.

Customer controls the visibility of user and workspace information via the administrative features of the Software. If Customer has made the Software Internet accessible, Settings such as “Public” and “View” may cause the information to show up in public search results and be publicly accessible.

11. CUSTOMER OBLIGATIONS

11.1 Security. Customer must use reasonable security safeguards in connection with its use of the Software and Support, such as requiring users to establish reasonably complex passwords, using commercially available Malware scanning on its own systems, and using the encryption features of the Software where appropriate .

11.2 Account Contacts. Customer shall update its account contacts so that they remain accurate at all times. Customer acknowledges that Assembla may act on the instructions of an individual who is designated by Customer as having the authority to give the instruction in Assembla customer portal until Customer has removed the individual from that role using the means provided on the portal.

11.3 Compliance with Law. Customer must use all Assembla software, services, technology or materials, including the Software and Support (the “Assembla Technology”) in compliance with applicable law, including the laws described in the Subsections 12.3.1 and 12.3.2 below.

12.3.1 Privacy Laws. Customer represents and warrants that its use and disclosure of any Customer Information to Assembla and Assembla’s authorized use and disclosure of the Customer Information as necessary to provide the Support, does not infringe or violate the intellectual property rights or other legal rights of any third party, such as rights of publicity or the privacy of data subjects under applicable data protection laws. Specifically, but without limitation, Customer represents and warrants that it, where required by applicable law, it has obtained consent from the data subjects for Assembla’s use and disclosure of Customer’s Personal Data as required or permitted by this Agreement.

12.3.2 Export Laws. Customer may not permit any person to access or the Assembla Technology in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Assembla to be in violation of U.S. export laws, even if the use is permitted the laws applicable to Customer or End Users. For example: (i) Customer may not authorize any person to use or access the Assembla Technology if that person is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC), or is located in or is a national of any country that is embargoed under United States export laws; (ii) Customer may not use or permit the use of any Assembla Technology to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State; and (iii) Customer may not permit the use of the Assembla Technology by any person who Customer know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.

12.4 Records and Audit. Customer must keep complete and accurate records showing the location where each copy of the Software has been installed or stored, and the relevant information necessary to verify its compliance with the license metric (such as users, transactions, number of servers, CPUs, etc.) and with any Support requirements. Assembla may audit Customer’s records and facilities provided that: (i) it gives reasonable advance notice of the audit and conducts the audit without undue interference in Customer’s operations; (ii) it conducts an audit no more than once per 12 months unless it discovers non-compliance, in which case it may conduct an audit as often as once per 3 months until there have been no findings of non-compliance for a period of 12 months. In the alternative, Assembla may require Customer to conduct a self-audit on reasonable terms and provide an attestation of Customer’s officer or like official reporting the results. If Assembla requests a self-audit, Customer shall complete the audit and return the results and attestation within 30 days of Assembla’s request. If an audit reveals unlicensed use, Customer must pay license fees and any related support fees within ten (10) days of the date of the audit report. If the unlicensed use exceeds 5% of the authorized use, Customer shall also pay interest at the overdue rate provided in the Agreement from the time that the fees would first have been due under the terms of the Agreement. If the audit or certification reveals unlicensed use or more than 10% Customer shall also bear the reasonable cost of the audit. If the audit or certification does not demonstrate the date that the unlicensed use first began with clear and convincing evidence, the license period will be presumed to begin as of the effective date of the original Order for licenses purchased under this Exhibit. Assembla acknowledges that information learned as part of an audit that is Confidential Information of Customer may not be used for any purpose unrelated to the audit.

12. INTELLECTUAL PROPERTY

12.1 Customer IP. Customer retains all right, title and interest in and to the Customer Information and all related intellectual property rights, including the content of reports and other output generated by Customer by using the Software and any modifications to the Customer Information that result from the use of the Software. Assembla may use Customer Information solely for the purpose of providing Services in accordance with the Agreement or as may be permitted under Section 14 (Confidential Information).

12.2 Assembla IP. Except for any deliverables expressly identified in an Order for professional services as “Customer-Owned Deliverables,” Assembla retains all right, title and interest in and to its Software and other Assembla Technology, and any and all information and processes used to deliver or provide the Software or Support, whether existing prior to the date of the Agreement, or conceived, discovered, developed, authored, reduced to practice or otherwise created as part of providing the Software or Support or other services.

12.3 Feedback. Customer hereby licenses to Assembla any feedback or suggestions that it provides regarding the Software, Support or Assembla’s other existing or proposed products or services on a perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable basis, including the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to Customer. Customer agrees that it will not assert, or authorize, assist, or encourage any third party to assert, against Customer or any of its affiliates, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the Software or Support or any other Assembla products or services that Customer uses.

12.4 General Reservation of Rights. Except for the rights and licenses expressly granted in the Agreement, each party retains all right, title and interest in and to its information and technology and all related intellectual property rights. The parties agree that no license may arise by estoppel or course of conduct.

12.5 Restricted Rights Notices. If the Customer is an agency or office of the U.S. Government, the Software and other materials or technology provided pursuant to the Agreement are “commercial computer software,” “commercial computer software documentation,” and “technical data,” as applicable, as defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation. All software and services were developed at private expenses and are provided with RESTRICTED RIGHTS.

13. TERM AND TERMINATION

13.1 Term of Agreement. The initial term of the Agreement begins on the Effective Date and continues for one year. On expiration of the initial term, the Agreement renews for consecutive renewal terms of one (1) year each unless either party gives a notice of non-renewal at least thirty (30) days prior to the of the initial term or then-current renewal term, as applicable. Either party may terminate this Agreement for convenience at any time without liability to either party by giving thirty (30) days advance written notice. If Customer places an Order after the initial Order, the initial term of the subsequent Order is co-terminous with the then-current term of the initial Order, and the Agreement (including all Orders) shall renew at the expiration of the then-current term unless Assembla elects not to renew the Agreement by giving written notice at least thirty (30) days prior to the expiration of the then-current term.

13.2 Termination for Breach. A party may terminate this SLA and any or all Orders if the other party is in material breach of this Agreement, provided that if the breach is curable, the terminating party has first given the other party written notice describing the breach in reasonable detail and an opportunity to cure the breach of at least thirty (30) days. A party may terminate an Order if the other party is in material breach of the Order and fails to cure the breach within thirty (30) days of the other party’s written notice describing the breach in reasonable detail.

13.3 Early Termination Other than for Breach. Customer may terminate an Order for convenience at any time on thirty (30) days advance written notice, provided that, unless otherwise stated in the Order, Customer remains responsible for the fees for the remaining part of any subscription license or support plan, or other committed fees described in the Order. Assembla may terminate an Order for convenience only as expressly permitted by the Order. A party may terminate this Agreement and any or all Orders without liability to either party as follows: (ii) by Assembla in the event of an Assembla IP claim as provided in Subsection 17.4 (IP Infringement Claim); (ii) by either party if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action that the other party reasonably believes will materially impair its performance under the Agreement (including payment of fees).

13.4 Obligations on Expiration, Termination. On expiration or earlier termination of an Order, the licenses and Services covered by the Order terminate, except that perpetual licenses survive termination or expiration unless the Order was terminated by Assembla for Customer’s breach of the perpetual license. Within five (5) days days of expiration or termination of an Order Customer must uninstall and destroy the Software and all other software and related materials and information, except for Software covered by a surviving perpetual license and archival copies of software or other materials that Customer is permitted to retain under Section 14 (Confidential Information). Unless otherwise agreed in the applicable Order, the unpaid part of any subscription license, support plan, or other services fees for the remaining term of the Order are due and payable on the effective date of expiration or termination.

13.5 Survival. The following provisions survive expiration or termination of this Agreement: Section 2, as to any defined terms used in other surviving sections, Section 6 as to any fees remaining unpaid at the time of expiration or termination, Section 12.4, 13, 14.5, 14.6, 15, 17, 18, 20, and 22 -25 inclusive, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.

13.6 Suspension. Assembla may suspend Customer’s Software license and Support during any period that Customer is in material, uncured breach of this Agreement if the breach puts Assembla at significant legal, security, or operational risk. Assembla shall give written notice of suspension under this Section at least five (5) days in advance unless there is an imminent security risk, in which case Assembla may suspend on as much notice as is feasible under the circumstance. Assembla will remove the suspension promptly when the grounds for suspension no longer exist (unless Assembla has terminated the Agreement prior to that time).

14. CONFIDENTIAL INFORMATION

Neither party may use the other party's Confidential Information except in connection with the performance of its obligations or the exercise of its rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are at least as stringent as these terms; (ii) in response to a subpoena or other compulsory legal process, provided that each party agrees to give the other advance written notice of at least seven days prior to disclosing the other party’s Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice; or (iii) as required by law, such as a requirement under a data privacy regulation that a notice of data breach be given to a supervisory authority or regulatory agency. On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information, except that Customer may retain archival copies of Assembla software consistent with reasonable and customary record keeping practices, or as necessary to comply with any laws or regulations applicable to Customer. If a party believes it is not feasible to completely destroy the other party’s Confidential Information as required by this Section, it will give the other party written notice describing the Confidential Information and the circumstances that make destruction infeasible. All Confidential Information retained by party following termination of the Agreement remains subject to the requirements of this Section. Customer will use commercially reasonable care to safeguard Assembla’s Confidential Information. Assembla’s obligations to safeguard Customer Information are stated in Section 10 (Security). For Customer’s Confidential Information other than Customer Information, Assembla will use commercially reasonable care to safeguard the Confidential Information. Each of Customer and Assembla is responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.

15. DISCLAIMERS

15.1 No Other Services. Assembla has no obligation to provide software or services to Customer other than the Software and Support described in an Order. Any software or services provided by Assembla to Customer other than the Software and Support described on an Order are provided AS IS and AS AVAILABLE with no representation or warranty whatsoever.

15.2 No Other Warranties. Except for the warranties expressly stated in the Agreement, Assembla makes no representations or warranties whatsoever, and disclaims any implied warranties such as any warranty of merchantability, suitability for a particular purpose, or any warranty that may arise through a course of dealing. Specifically, but without limitation, Assembla does not warrant or represent that the Software will be error free, uninterrupted, or completely secure. If applicable law requires a warranty notwithstanding this disclaimer, then that warranty is made for thirty (30) days from delivery of the Software.

16. LIMITATIONS ON DAMAGES

16.1 Excluded Damages. Except for a damages arising from a party’s breach of its obligations under Section 14 (Confidential Information) or its infringement or misappropriation of the other party’s intellectual property rights, neither party nor its owners, personnel, affiliates, licensors, suppliers, or subcontractors is liable to the other party for any indirect, special, incidental, or consequential loss or damage of any kind, or for any lost profits, revenue, business opportunities, use of data, customers, contracts, goodwill or reputation, or for any punitive or exemplary damages. Neither party is liable for any loss that could have been avoided by the damaged party’s reasonable efforts to mitigate the damages, even if the party has been advised or should be aware of the damages.

16.2 Maximum Liability. Notwithstanding anything in the Agreement to the contrary, except for liability arising from: (i) death or personal injury caused by negligence, (ii) willful misconduct, (iii) misrepresentation, (iv) damages arising from a party’s breach of its obligations under Section 14 (Confidential Information) or its infringement or misappropriation of the other party’s intellectual property rights, or (v) license or other fees due under this Agreement, the maximum aggregate liability of either party and its owners, personnel, affiliates, licensors, suppliers and subcontractors in connection with the subject matter of the Agreement or any Order shall not in the aggregate exceed the total amount paid or payable for the Products from which the claim arose for the twelve (12) months immediately preceding the event(s) that gave rise to the claim.

16.3 Other. The parties acknowledge that Assembla has set its prices and entered into the Agreement on reliance on the limitations of remedies and liability stated in the Agreement, and that these clauses reflect an agreed allocation of risk between the parties. The limitations stated in this Section apply to any liability arising from any cause of action, including tor, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. For clarity, the limitation stated in the subsection “Maximum Liability” is an aggregate limitation, and is not “per incident.” Nothing in this Subsection precludes a party from seeking specific enforcement, injunctive relief or other non-monetary equitable remedy that is available by law. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.

17. INDEMNIFICATION

17.1 By Assembla. Assembla will defend, at its expense, any claim against Customer or its owners, personnel, agents or representatives (the Customer “Indemnitees”) by an unaffiliated third party that: (i) asserts that Customer’s or the End Users’ use of the Software as permitted by the Agreement infringes on the third party’s intellectual property rights in the United States (an “IP Claim”), (ii) arises from Assembla’s or its Indemnitees gross negligence, willful misconduct or misrepresentation, or (iii) arises from Assembla’s breach of Section 10 (Privacy) or Section 14 (Confidential Information), and shall pay any resulting judgment that is finally awarded to the third party by a court or other tribunal of competent jurisdiction, including any award of attorney fees and court costs. Notwithstanding the foregoing, Assembla has no obligation with respect to an IP Claim to the extent that it is based on Customer’s combination of the Software with Third Party Technology or its own technology, Customers unauthorized change to the Software, Assembla’s compliance with Customer’s specific directives that are not standard for Assembla, or Customer’s use of the Software after Assembla has provided an updated version that is functionally equivalent but free from the IP Claim (the “Exclusions”) .

17.2 By Customer. Customer will defend, at its expense any claim against Assembla or its owners, personnel, agents or representatives (the Assembla “Indemnitees”) by an unaffiliated third party that arises from: (i) Customer’s or its Indemnitees gross negligence, willful misconduct or misrepresentation, (ii) Customer’s breach of Section 3.1 (General License Terms), Section 11 (Customer Obligations), or Section 14 (Confidential Information), (iii) Assembla’s use of Unsupported technology as requested by Customer, or (iv) the Exclusions as defined above, and shall pay any resulting judgment that is finally awarded to the third party by a court or other tribunal of competent jurisdiction, including any award of attorney fees and court costs.

17.3 Procedure. The indemnified party must give notice of the indemnified claim to the indemnifying party within 10 days of the date the claim is made, provided that failure to give notice within the 10 day period does not relieve the indemnifying party of its obligations under this Section except to the extent the delay prejudices the defense of the matter. The indemnifying party shall select counsel to defend any indemnified claim under this Section, and shall control the defense of the claim, except that the indemnified party may participate in the defense of the claim at its option and expense, with counsel of its choice. The indemnified party must comply with any indemnifying party request for information or cooperation in connection with the defense of the claim. The indemnifying party may settle any indemnified claim, in its discretion, provided that the settlement fully resolves the indemnified party’s liability and does not require the indemnitees to make an admission of culpability.

17.4 IP Claims. If an IP Claim is asserted, or Assembla reasonably believes that an IP Claim is likely to be asserted, Assembla may do either of the following at its expense: (i) obtain the right for Customer to use the Software free from the claimed infringement; or (ii) modify the Software so that it is no longer subject to the claimed infringement. If Assembla is not able to do either on commercially reasonable terms, then Assembla may terminate the license for the Software on ninety (90) days advance written notice, and shall have no liability for such termination except to refund license fees as follows: (a) for a subscription license, any prepaid fees for unused subscription periods, (b) for a perpetual license, a pro rata portion of the license fee for the then remaining useful life of the license, based on an assumed five year useful life.

18. PRE-RELEASE TECHNOLOGY

Assembla may invite Customer to use test, beta, pilot, limited release, developer preview, non-production, evaluation or other pre-release software or services (“Pre-Release Technology”). Pre-Release Technology is provided AS IS and AS AVAILABLE without any representation or warranty whatsoever. Assembla is not required to provide support for Pre-Release Technology. Customer may not use Pre-Release Technology for production purposes unless it has written permission from Assembla. Assembla may discontinue Pre-Release Technology at any time in its sole discretion. Assembla may never offer a general release version of the Pre-Release Technology, or if it does, there may not be an automatic update path from the Pre-Release version to the general release version. Assembla has no liability for any harm or damage arising from Customer’s use of a Pre-Release Service.

19. NOTICES

Customer notices must be submitted via ticket on the Assembla customer portal, and copied by electronic mail to support@assembla.com. Assembla’s notices to Customer must be given to Customer’s primary account contact at the email address in the Assembla customer portal. If Cusotmer sends a notice of breach of the Agreement, a legal dispute, a legal claim, or other legal matter, it must copy Customer’s notice to legalnotice@assembla.com, and must also send Customer’s notice via first class United States mail to Assembla’s physical address appearing on its website on the day the notice is transmitted electronically. Assembla’s legal notices to Customer must be copied via first class United States mail to its physical notice address, or if its physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.

20. PUBLICITY, USE OF MARKS

Assembla may identify Customer in its marketing and sales materials, and may include Customer’s name, logo and other trade and service marks (its “Marks”), in an appropriate area of its website and marketing materials, provided that it does not state or imply that Customer endorses Assembla or its products. Assembla will use and display Customer’s Marks in accordance with Customer’s published trademark usage guidelines or other guidelines communicated to Assembla. Any goodwill accruing from Assembla’s use of Customer’s Marks accrues to Customer.

21. ASSIGNMENT/SUBCONTRACTORS

Neither party may assign the Agreement or any Order without the prior written consent of the other party except to an affiliate or its successor as part of a corporate reorganization or a sale of its business or a line of business. Each party must give the other party at least 30 days advance written notice of an assignment or a change in control of the party. Assembla may use subcontractors to perform all or any part of its obligations under the Agreement, but Assembla remains responsible under the Agreement for obligations performed by its subcontractors to the same extent as if Assembla performed the obligation itself.

22. FORCE MAJEURE

Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.

23. GOVERNING LAW, DISPUTES

23.1 Governing Law. This Agreement is governed by and interpreted under the laws of the State of Texas and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Transactions Act. The parties agree that neither the Services nor the Cloud Environment are considered “goods” covered by any State version of the Uniform Commercial Code.

23.2 Mediation. Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with the subject matter of this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Bexar County, Texas. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file a lawsuit or other action.

23.3 Jurisdiction, Venue. Each party agrees that it shall bring any lawsuit or other legal action related to the subject matter of this Agreement in the State or Federal courts sitting in Bexar County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court.

23.4 Waiver of Jury Trial. To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement.

23.5 Prevailing Party Recovery of Expenses. The prevailing party in any action or proceeding relating to this Agreement is entitled to recover reasonable legal fees and costs, including attorney’s fees. Customer must pay or reimburse Assembla’s reasonable actual attorneys’ fees and other expenses incurred in connection with any third party subpoena, warrant or other mandated disclosure that is unrelated to any claim between Customer and Assembla.

24. MISCELLANEOUS

24.1 License Delivery. Unless otherwise expressly stated in the Order, Assembla shall deliver the Software electronically by making the Software and enabling information available on Assembla’s Internet accessible download site. Delivery is deemed complete as of the day that Assembla has made the Software and enabling information available to Customer.

24.2 Foreign Corrupt Practices Actt. Each party hereto represents, warrants and covenants that: (a) in connection with this Agreement, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof; and (b) it shall comply in all material respects with the Foreign Corrupt Practices Act.

24.3 Order of Precedence. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: the Order as to any matter that the SLA expressly permits to be controlled by a term of the Order, an Exhibit or other attachement to the SLA, the SLA, and the Order.

24.4 Interpretations. The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The word “process” means to record, store, organize, structure, analyze, query, modify, combine, encrypt, display, disclose, transmit, receive, render unusable, or destroy, by automated means or otherwise. The word “including” means “including, without limitation.” The words “will” and “shall” are words of obligation, not expressions of intent or expectation. All references to monetary amounts mean United States Dollars unless otherwise indicated. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement. Unless otherwise defined, the words “business day,” “business hours,” or the like mean Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. A reference to “day” means a calendar day, unless expressly designated as a “business” day. The term “personnel” refers to employees of the person referred to and individual contractors of the person referred to if the individuals are under the direct supervision of the person referred to. The word “affiliate” refers to an individual or entity that controls, is controlled by, or is under common control with the person referred to, where control means ownership of the majority of voting interests of an entity or the right to control the policies of the entity by means of a controlling number of seats on the entity’s governing body. All technology provided under this Agreement is licensed and not sold; any use of the term “sale” or like word means a sale of a license. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular may imply the plural as indicated by the context, and pronouns that are gender specific should be read to refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement. References to sections in any of the documents that comprise the Agreement are references to the sections of the document in which the references appear unless otherwise indicated.

24.5 Amendments. Unless otherwise expressly permitted in the Agreement, the terms of an Order or this Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. The pre-printed terms of Customer’s purchase order or other business form are void and of no effect whatsoever. The terms of this Agreement and the applicable Order control over any conflicting term of a “click wrap” license that may be presented for acceptance as part of the installation of the Software.

24.6 Severability, Waive. If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.

24.7 Relationship Between the Parties. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. Nothing in this Agreement creates an obligation of exclusivity or non-competition. Each party is free to purchase and sell services of the type described in the Agreement to any person, including competitors of the other party.

24.8 No Third Party Beneficiaries. Except as expressly stated otherwise, there are no third party beneficiaries to the Agreement.

24.9 Counterparts, Signatures. This Agreement may be signed in multiple counterparts, which taken together shall be read as one Agreement. A signed agreement transmitted by facsimile, email attachment, or other electronic means shall be considered an original. The parties agree that electronic or digital signatures shall be given the same effect as a manual signature.



Exhibit A

Support Terms

1. Definitions. For purposes of this Exhibit A, Support Terms, the following terms have the meanings stated:

Enhancements means general release functional enhancements to the Software that Assembla includes as part of its standard Software license offering without additional charge.

Updates means bug fixes, error corrections, and minor changes to the Software covered by Support.

2. Software Maintenance. Assembla will provide Customer with access to Updates and Enhancements for the Software licenses covered by Support.

3. Technical Assistance. Assembla will give Customer access to its online support documentation, and will respond via chat and ticket to Customer’s support requests during its standard support hours in connection with Software licenses covered by Support. Assembla’s current support hours are Monday at 5:00 a.m. to Friday at 5:00 p.m., United States Central time, excluding federal public holidays in the United States and other Assembla announced support holidays.

4. Fees. Unless otherwise expressly stated in an Order, basic support for subscription licenses is provided at no additional charge. Assembla offers support for perpetual licenses and premium support for subscription licensees for an additional fee. Any Support fees that may be charged are non-refundable.

5. Support Tools. Customer is not required to permit Assembla to use any remote access Support tools, but acknowledges that a refusal will delay or impair the effectiveness of the Support.

6. Support Exclusions. Assembla has no obligation to provide Support for custom software or configurations unless otherwise agreed in an Order for professional services. Assembla has no obligation to provide Support where the request is the result of any of the following (the “Support Exclusions”), but may do so, at its option: (i) failure to implement all maintenance releases provided by Assembla; (ii) failure to use the Software in accordance with the applicable terms of the Agreement, the Documentation or reasonable instructions provided by Assembla, or (iii) modifications of the Software by anyone other than Assembla. Any Assembla Support provided in connection with a Support Exclusion is provided AS IS. In addition to its other remedies stated in the body of the SLA, Assembla may suspend Support during any period that the fees for Support are overdue.