End User License Agreement

GitKraken End User License Agreement

IMPORTANT – READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Axosoft LLC for any software and documentation that accompany this EULA. BY CLICKING “I AGREE,” INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE. We may update this EULA from time to time and will provide you with the latest version by providing a notice to you in the Software. Your licensing of Software is in accordance with the terms of the EULA in effect at the time of such licensing. By licensing Software, you accept and agree to the EULA in effect at such time.

1. DEFINITIONS

“Proof of License” means the collective set of documentation from Axosoft evidencing your obligation to pay associated fees for the license, and the authorized scope of use of the Software under this EULA.

“Server” means a single physical computer that is accessed or accessible by multiple client programs and/or users. Multiple computers that share processing power or operate in a networked configuration as a single computer, such as a “server cluster,” or similar arrangement, shall constitute multiple Servers for the purpose of this EULA.

“Open Source Software” means the individual software components that are not owned by Axosoft and are provided with Software under the terms of various separate software license agreements.

“Software” means collectively, all the versions of the GitKraken software (including Hosted Features (as defined below)), and associated media, printed materials, and online or electronic documentation. The term “Software” specifically excludes all Open Source Software provided with the Software.

“Software License Key” means a unique code to be issued to you by Axosoft that is required to activate the Software.

“You” or “Your” means the individual or legal entity specified in the Proof of License.

2.GRANT OF LICENSE.

2.1 Trial Or Beta Licenses: The Software can be activated with no-cost evaluation or beta test Software License Key(s). Software License Keys for evaluation or beta test versions of the Software will expire on a certain date as noted when you activate the evaluation or beta test Software License Key (the “Expiration Date”). When you activate the Software using an evaluation or beta test Software License Key, the Software is licensed to you subject to the additional terms of this “WARNING FOR EVALUATION AND BETA LICENSEES” section. If you activate an evaluation or beta version of the Software (hereinafter referred to as an “Evaluation Product” or “Beta Product,” as applicable) with an evaluation or beta Software License Key, then and notwithstanding anything in this EULA to the contrary: (i) you may use the Evaluation Product or Beta Product, as applicable, internally until the Expiration Date only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis or test and evaluate the Beta Product, as applicable; (ii) the limited 90-day warranty in Section 11 below is not applicable to you; (iii) Axosoft will have no duty or obligation to provide you with the support services described by Section 4 below; and (iv) THE EVALUATION PRODUCT OR BETA PRODUCT, AS APPLICABLE, IS PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND AXOSOFT HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY. AXOSOFT BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT OR BETA PRODUCT, AS APPLICABLE, THROUGH AND AFTER THE EXPIRATION DATE, AND HAS NO DUTY TO PROVIDE SUPPORT TO YOU.

2.2 License Rights. The Software is licensed, not sold. Subject to the terms and limitations of this EULA and the terms of your Proof of License, Axosoft hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to (i) use the Software License Key(s) to activate the Software to the extent permitted by your Proof of License and subject to payment of the applicable license fees, if any; (ii) install as many instances of the Software on as many Servers as you like, provided that the total number of users across all of your instances does not exceed the amount of users permitted by your Proof of License; (iii) use the Software, in object code form only, solely for internal use and solely in accordance with the terms and conditions of this EULA and the Proof of License, and (iv) use the documentation for the Software in connection with permitted licensed uses of the Software. An applicable Software License Key or other program within the Software may monitor your usage of the Software to ensure your compliance with the limitations set forth in the Proof of License and this EULA. We also reserve the right to audit your usage of the Software at any time.

a. SaaS License and Use: Certain features of the Software, including GitKraken Boards and GitKraken Timelines, are provided on a hosted basis to you if you purchase access to them (the “Hosted Features”). Subject to the terms and limitations of this EULA and the terms of your Proof of License, Axosoft hereby grants you a non-exclusive, non-transferable license, without the right to sublicense, to (i) access and use the Hosted Features to the extent permitted by your Proof of License, subject to the payment of applicable license fees if any, and subject to the Hosted Features terms and conditions set forth in Section 2.9 below.

2.3 Your Proof of License will specify: (a) the Software licensed, (b) the license term, (c) the total number of users (including individual users and maximum concurrent users), and (d) any other applicable terms (e.g. Expiration Date, use restrictions (such as open source projects or commercial use) authorized location(s) for a site license, etc.). Additionally, if your Proof of License includes additional services, then it will also specify the (e) service and (f) service term. If your rights to Software or services are limited in duration and the date such rights begin is other than the purchase date, your Proof of License will provide that beginning date(s). The Proof of License may be delivered to you in various ways depending on the manner in which you obtain Software and services; for example, the Proof of License may be provided in your receipt, invoice or your contract with Axosoft or authorized Axosoft reseller. It may also be in electronic form if you download Software. If your Proof of License does not set forth the license term, number of users, then the license shall be for one (1) year, and the number of users shall each be one (1), as applicable. If you do not have a Proof of License, then such software shall be an Evaluation Product and your rights shall be as set forth in Section 2.1 above.

2.4 Software Transfer: You may transfer the Software to a different internal workstation that you control or user so long as you have purchased a License for each such workstation or user. You may not, however, transfer the Software to a Third Party.

2.5 Limitations: You may only use the Software for your internal business purposes. You may not use the Software for any other purpose. You may not use, copy, modify, display, rent, lease, loan, transfer, distribute, assign, transfer, download, merge, or make any translation or derivative work of the Software, except as expressly provided herein. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on the Software. You are not granted any rights to any trademarks, service marks, logos or trade names of Axosoft. Axosoft retains all rights not expressly granted to you under this EULA. There are no implied rights.

2.6 Open Source Software: The Open Source Software is licensed to you under the terms of the applicable third party license conditions that can be found in the menu, popup window, or other documentation accompanying the Software (the “Open Source Terms”). Copyrights to the Open Source Software are held by copyright holders indicated in the Open Source Terms. Any terms of this Agreement that conflict with the terms of any license agreements for Open Source Software shall not apply to such Open Source Software.

2.7 Types of Licenses Axosoft provides several different types of licenses, which are further detailed on your Proof of License. However, we have summarized them here for your convenience:

a. Self Hosted: This version of the license grants you a single license to the installed version of the Software only and does not grant you access to the Hosted Features.

b. Stand Alone: This version of the license grants you a bulk single license and permits you to install copies of the Software on multiple servers that you own or control. It does not grant you access to the Hosted Features.

c. Standard: This version of the license grants you a license to install the Software and to access the Hosted Features.

d. Other Products: From time to time, we may offer other versions of the license and the details pertinent to that license will be specified on your Proof of License.

2.8 Hosted Features: Axosoft provides several Hosted Features, and by accessing and using such Hosted Features, you agree as follows:

a. You are responsible for the information, data, messages, comments, and other content or material that you submit, upload, post or otherwise make available on or through the Hosted Features (each a “Submission”). You may not upload, post or otherwise make available on the Hosted Features any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.

b. You agree that any Submission provided by you in connection with this Hosted Features is provided on a non-proprietary and non-confidential basis. You hereby grant to Axosoft a non-exclusive, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Submissions, or any portion thereof for the purpose of sharing you Submissions with parties you designate, and for the purpose of providing the Hosted Features and Software to you. We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media. You agree not to include personally identifiable information in any of your Submissions, and if you.

c. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Hosted Features. When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorized Activities” paragraph below. Those prohibitions do not require Axosoft to monitor, police or remove any Submissions or other information submitted by you or any other user.

d. When using this Hosted Features and/or the services, you agree not to:

  • Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Use racially, ethnically, or otherwise offensive language.
  • Discuss or incite illegal activity.
  • Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
  • Post anything that exploits children or minors or that depicts cruelty to animals.
  • Post any copyrighted or trademarked materials without the express permission from the owner.
  • Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
  • Use any robot, spider, scraper or other automated means to access the Hosted Features.
  • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
  • Alter the opinions or comments posted by others on this Hosted Features.
  • Post anything clearly false or misleading.
  • Post anything unrelated to our business, products or services.
  • Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.

This list of prohibitions provides examples and is not complete or exclusive. Axosoft reserves the right to (a) terminate access to your account, your ability to post to this Hosted Features (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that Axosoft determines is inappropriate or disruptive to this Hosted Features or to any other user of this Hosted Features and/or Services. Axosoft may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Axosoft’s discretion, Axosoft will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Hosted Features or on the Internet.

3. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY

The Software, including methods, processes and/or techniques utilized therein, are owned by, proprietary to, and valuable trade secrets of Axosoft and are protected by US copyright law and international treaties. You agree to take no actions that impair or infringe Axosoft’s intellectual property rights in the Software. Axosoft retains all right, title, and interest in and to the Software and the Software License Key(s) and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including, without limitation, registrations, applications, renewals, and extensions of such rights.

4. SUPPORT SERVICES

4.1 During the term of your license, Axosoft will provide support services and maintenance to you in accordance with Axosoft’s then-current support terms and conditions, as furthered detailed on https://support.gitkraken.com/ (the “Support Terms and Conditions”), subject to your payment of the applicable fees. By accepting the terms of this EULA, you are accepting these Support Terms and Conditions. Any update, upgrade or supplemental software code or related materials that Axosoft provides to you as part of any support services are to be considered part of the Software and are subject to the terms and conditions of this EULA. Axosoft may use free of charge any information you provide to Axosoft for any Axosoft business purposes without restriction, including for product support and development. Axosoft will not use information in a form that personally identifies you.

4.2 Usage and Other Data. The Software, by default, automatically collects and sends to Axosoft and/or its third party agents (a) general usage information, such as actions and durations of those actions and (b) bug reports when the Software experiences a crash. This information is used by Axosoft to improve the Software and related products and services. You acknowledge and agree that Axosoft solely and exclusively owns all right, title, and interest in and to such information and bug reports.

5. AUDIT AND RECORDS

You agree to maintain complete and accurate records during the term of your license and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining the number of users using the Software and the amounts due to Axosoft hereunder. Axosoft will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit your records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that you have underpaid Axosoft with respect to any amounts due and payable during the period to which such inspection and audit relate, or that you have exceeded the parameters of your license rights, you shall promptly pay such amounts as are necessary to rectify such underpayment, or purchase additional licenses to account for all of your license usage. Such inspection and auditing rights shall extend throughout the term and for a period of two (2) years after the termination of this Agreement.

6. TERMINATION

Axosoft may terminate this EULA upon notice if you fail to comply with any term of this EULA. Additionally, for Evaluation Product and Beta Product, either party may terminate this EULA for any reason or no reason whatsoever by providing notice to other party. In the event of termination or expiration of this EULA, all of the licenses granted to you hereunder shall terminate and you must promptly destroy all copies of the Software and all Software License Keys. In addition, you must promptly remove all copies of the Software from the Server and all computers and terminals on which it is installed. The definitions and rights, duties and obligations of the parties that by their nature continue and survive shall survive any termination or expiration of this EULA.

7.U.S. GOVERNMENT USERS; COMPLIANCE AND RESTRICTIONS

7.1 The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this EULA.

7.2 Each party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.

8. DISCLAIMER OF WARRANTIES:

Axosoft warrants that the media, if any, on which the Software is delivered will be free of defects and that the Software will substantially conform to the description contained in the applicable end user documentation in each case for a period of 30 days after the date of activation of the Software License Key, or with regard to the Hosted Features, 30 days after the date such Hosted Features are first accessed by you (the “Warranty Period”). Within the Warranty Period, should you encounter and report to Axosoft a reproducible error that causes the Software to not meet the foregoing warranty, then Axosoft will, at its sole discretion, either: a) resolve the error or malfunction, and modify or replace the Software (if deemed necessary by Axosoft); or b) allow you to terminate this EULA with respect to the non-conforming Software and, upon your return of the Software to Axosoft, Axosoft shall refund to you the amount you paid for the non-conforming Software. The remedies described in this section shall be your sole and exclusive remedies under this EULA.

EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXOSOFT PROVIDES THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND AXOSOFT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Axosoft does not warrant that any Software will meet your needs or requirements or be error-free or that any errors or defects will be corrected.

9. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AXOSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR LOSS OF DATA, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OF AXOSOFT OR ANY SUPPLIER, AND EVEN IF AXOSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.

AXOSOFT’S LIABILITY SHALL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED UNDER THIS EULA, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER AXOSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. ASSIGNMENT:

You may not assign this EULA, in whole or in part, without the prior written consent of Axosoft, except as part of the sale or other transfer of any Server on which the Software came pre-loaded, provided that you retain no copies of the Software and the transferee agrees in writing to honor the terms and conditions of this EULA. In the case of any such transfer, Axosoft shall continue to own all right, title and interest in and to any intellectual property embodied in the Software. Any attempt by you to assign or otherwise transfer your right and obligations under this EULA in violation of the provisions of this Section 13 shall be null and void. Subject to the foregoing, this EULA will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

11. GENERAL PROVISIONS:

This EULA is governed by the laws of the State of Arizona and the United States of America, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. The federal and state courts located in Maricopa County, Arizona USA shall have non-exclusive jurisdiction in respect of disputes arising in connection with this EULA. This EULA and the Proof of License is the entire agreement between us with respect to the subject matter hereof and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. If any provision of this EULA is held invalid, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA shall continue in full force and effect. This EULA may be modified only by written agreement signed by authorized representatives of you and Axosoft. No term or provision hereof will be considered waived by Axosoft, and no breach excused, unless such waiver or consent is in writing signed by Axosoft. No consent by Axosoft to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach. The section headings appearing in this EULA are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such section.

12. CONTACT INFORMATION:

If you have any questions about this EULA, or if you want to contact Axosoft for any reason, please direct all correspondence to: Axosoft LLC 13835 N Northsight Blvd, Suite 205 Scottsdale, AZ 85260, or email support@gitkraken.com. Axosoft is a trademark and/or a registered trademark of Axosoft or its affiliates in the United States and/or various jurisdictions.