Terms of Service

Last Updated: September 2022

These Terms of Service (“Terms of Service”) are entered into by and between Buildkite Pty Ltd. a company organized under the laws of Australia with offices at Buildkite, ℅ BDO, Level 18, 727 Collins Street, Melbourne, Victoria, Australia 3008 (Buildkite) and the entity or person placing an order for or accessing the Buildkite Solution (“Customer” or “you”). If you are accessing or using Buildkite Solution on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. These Terms of Service together with all exhibits and addenda hereto and documents referenced and linked to herein and all Order Forms entered into by the parties hereunder (collectively, the “Agreement”) permit Customer to order the Buildkite Solution from Buildkite and its authorized resellers, sets forth the terms and conditions between the parties with respect thereto, and governs Customer’s access and use of the Buildkite Solution.

ACCEPTANCE: BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR DOWNLOADING, ACCESSING OR USING THE BUILDKITE SOLUTION, CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE BUILDKITE SOLUTION. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THE AGREEMENT IS LEGALLY BINDING UPON IT. PLEASE READ IT CAREFULLY.

  1. Definitions.

    The following defined terms used in this Agreement shall have the following meanings.
    • “Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the Buildkite Cloud Services.
    • “Account” means a registered Customer account within the Buildkite Cloud Services.
    • “Aggregated Data” means any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived by the Buildkite Cloud Services from aggregated, anonymized usage information and data across Buildkite’s customer base.
    • “Buildkite API” means the Buildkite application programming interface as released and updated from time-to-time by Buildkite.
    • “Buildkite Agent” means the Buildkite installed executable ‘agent’ used for deploying builds on a User’s server which connects to the Buildkite Cloud Services, including all Updates.
    • “Buildkite Cloud Services” means the version of the Buildkite software as a service offering subscribed to by Customer pursuant to an Order Form and made generally commercially available by Buildkite as of the Effective Date, including all Updates, which is accessible by login using the Access Credentials through the Buildkite Site.
    • “Buildkite Site” means the website found at https://buildkite.com.
    • “Buildkite Solution” means the Buildkite Agent, Buildkite Cloud Services and Buildkite API.
    • “Buildkite Technology” means the computer software, computer code, scripts, application programming interfaces (APIs), connectors, dashboard, interactive displays, models, visualizations, simulations, predictive engines, neural networks, artificial intelligence, machine learning models, methodologies, templates, work flows, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Buildkite Cloud Services, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
    • “Customer Content” means information, data, code, documents and other information and materials submitted by Customer to the Buildkite Cloud Services.
    • “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Buildkite Solution and which are made available to Customer by Buildkite.
    • “Fee” means any fees payable to the Company for access to or use of the Buildkite Solution.
    • “Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
    • “Order Form” means Buildkite’s form of work order, order form or other ordering document signed by an authorized representative of each party.
    • “Plan” means the combination of Buildkite Agents, Users, support and features subscribed to by Customer and set forth on an Order Form.
    • “Privacy Policy” means the Buildkite privacy policy as updated from time-to-time, accessible at: https://buildkite.com/privacy-policy.
    • “Project” means a Customer’s project established in the Customer’s Account.
    • “Subscription Fee” means either the monthly or quarterly or annual “per User” fee charged for access to and use of the Buildkite Solution as set forth on an Order Form.
    • “Subscription Term” means the initial subscription term set forth in the Order Form and each renewal subscription term.
    • “Team Member” means any registered user of Buildkite on Customer’s Account authorized by Customer to access and use the Buildkite Solution on Customer’s behalf and which is not a competitor of Buildkite.
    • “Third Party Services” means the Customer’s third party service account(s) connected to the Buildkite Solution.
    • “Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Buildkite Solution made generally commercially available by Buildkite to its customers who have subscribed for Support Services.
    • “User” means Customer or a Team Member as the context applies.
  2. Buildkite Solution

    1. Buildkite Solution

      . Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Documentation, and each Order Form, including, without limitation, payment of all applicable Fees, Buildkite hereby grants Customer during the Term:
      1. a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable license to install the Buildkite Agents on Customer’s Servers for the sole purpose of enabling Users to use the Buildkite Solution and not to exceed the number of Team Members and Agents licensed by Customer and set forth on an Order Form;
      2. a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable license to use the Buildkite API for the sole purpose of integrating the Third Party Services with the Buildkite Solution and enabling Customer and its Users to access and use the Buildkite Solution; and
      3. the right to access and use the Buildkite Cloud Services in accordance with this Agreement and as hosted by Buildkite or its third party hosting provider and made available by Buildkite through the Buildkite Site.

      Customer will not, directly or indirectly through a third party, in whole or in part: (a) adapt, alter, modify, improve, translate, make publicly available, resell, rent, lease, sublicense or loan the Buildkite Solution or create derivative works of the Buildkite Solution; (b) copy the Buildkite Solution (except for a reasonable number of backup and archival copies of the Buildkite Agents and Buildkite API); (c) use the Buildkite Solution other than in accordance with the Documentation or use the Buildkite Solution in violation of the license restrictions applicable to the Buildkite Solution; (d) use the Buildkite Solution in a service bureau or application service provider environment, in a commercial time share arrangement, or for purposes of providing services to a third party or combine all or any part of the Buildkite Agents with other software or use all or any part of the Buildkite Solution to create a new product, application or service or to complete with Buildkite; (e) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Buildkite Solution or attempt to modify, alter, or circumvent the license control and protection mechanisms within the Buildkite Solution; or (f) provide, maintain access to, or use the Buildkite Solution in any manner inconsistent with this Agreement. If 2.1(e) is prohibited by applicable law, Customer shall provide Buildkite with a detailed prior written notice of any such intention to reverse engineer the Buildkite Solution and shall provide Buildkite with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services provider for such work.

    2. Customer Access.

      1. Customer acknowledges and agrees that a User’s access and use of the Buildkite Solution is dependent upon access to telecommunications and Internet services. To access Buildkite, each User must register with Buildkite (either as a Customer or as a Team Member, as the case may be) with a valid email address. The prerequisites for accessing and using the Buildkite Solution are as set forth in the Documentation and Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Buildkite Solution, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. At a minimum, to use the Buildkite Solution, Customer and its Team Members must have access to the Buildkite Cloud Services, own or control a server from which a User deploys builds and which will host the Buildkite Agent, install the Buildkite Agent on the User’s server, and have a working internet connection.
      2. The Buildkite Cloud Services are accessible to registered Users via login from the Buildkite Site. To use the Buildkite Solution, the User must have access to the Buildkite Cloud Services. The Buildkite Cloud Services contains the Customer’s Projects, controls the deployed Buildkite Agents, connects to the Customer’s Third Party Services and provides the Customer with Account management. Each build in a Project is deployed from the Buildkite Cloud Services.
      3. The Buildkite Agent is an open-source toolkit for running builds on a User’s server. As the Agent is open-source, Buildkite makes no representations or warranties as to the Buildkite Agent. A User can install an unlimited number of Buildkite Agents on a server, and the Buildkite Cloud Services distribute builds across the relevant Buildkite Agents. Each Buildkite Agent runs a single build at a time. A User is solely responsible: (i) For the security of the servers on which it deploys a Buildkite Agent(s); and (ii) Ensuring any Buildkite Agent(s) are updated to get the latest features and security fixes.
      4. Each User shall have a set of unique keys in order to access the Buildkite API. Buildkite authorizes the User to access and use the Buildkite Cloud Services available through the Buildkite API. Misuse of the Buildkite API may cause issues to the Buildkite Solution, and as a result, may affect the performance of the Buildkite Cloud Services. Any intentional or negligent misuse of the Buildkite API by a User may result in suspension or termination of such Users’ access to the Buildkite API and/or the Buildkite Solution.
      5. Buildkite will not be responsible for any loss or corruption of Customer Content, lost communications, or any other loss or damage of any kind arising from Customer’s or its third party providers’ telecommunications or Internet services or any such hardware or software. If Customer permits non-employee Team Members to use the Buildkite Solution, Customer shall be responsible for any breach of this Agreement by any such Team Members.
    3. Third Party Services

      . The Buildkite Solution may support connections with certain Third Party Services or enable Customer to develop integrations with Third Party Services. In order for the Buildkite Solution to communicate with such Third Party Services, Customer may be required to input credentials to authorize the Buildkite Solution to connect to Customer’s Account in order to transmit and receive Customer Content from such Third Party Services as directed or enabled by Customer. Customer is solely responsible for complying with any relevant terms and conditions of the Third Party Services and maintaining appropriate accounts in good standing with the providers of the Third Party Services. Customer acknowledges and agrees that Buildkite has no responsibility or liability for any Third Party Services or their availability, for any Customer Content exported to Third Party Services or for verifying any Customer Content that Customer imports from Third Party Services. The Customer and its Team Members shall comply with the terms of use of any Third Party Services with which it uses the Buildkite Solution.
    4. Trial Subscriptions

      . If Customer receives a trial or evaluation subscription to the Buildkite Solution (a “Trial Subscription”), then Customer may use the Buildkite Solution in accordance with the Agreement for the period granted by Buildkite in the Order Form for the Trial Subscription (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a subscription to the Buildkite Solution and may have limited functionality and features. Customer’s right to access and use the Buildkite Solution will terminate at the end of the Trial Period unless Customer elects to purchase a non-trial or evaluation version of the Buildkite Solution under a separate Order Form with Buildkite. Buildkite Solution has the right to terminate a Trial Subscription at any time for any reason. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of Buildkite hereunder shall not apply to Trial Subscriptions all of which are provided “as is” and “as available”. Further, any content Customer enters into the Buildkite Solution, and any customizations made to the Buildkite Solution by or for Customer, during Customer’s Trial Subscription will be permanently lost unless Customer orders a subscription to the Buildkite Solution covered by the Trial Subscription or exports such content, before the end of the Trial Period.
    5. Modifications to the Buildkite Solution

      . Buildkite reserves the right to modify the Buildkite Solution on a continuous basis and if any such modification materially and adversely reduces the functionality of the Buildkite Solution, Customer may terminate its subscription for the Buildkite Solution, pursuant to Section 10.2(a). Buildkite may condition the implementation of new features, functionality or other modifications to the Buildkite Solution on Customer’s payment of additional fees, to be added at the beginning of a renewal Subscription Term, provided that Buildkite generally charges other customers for such modifications.
    6. SLA and Support Services

      . Buildkite will provide the Buildkite Solution in accordance with the SLA and will provide Customer with Support Services.
    7. Customer Content

      1. Generally

        . This Agreement, and Customer’s use of the Buildkite Solution’s features and functionality, are Customer’s instructions to Buildkite in relation to the processing of any Customer Content. Buildkite will process Customer Content only as necessary to provide Customer with the Buildkite Solution, and only in accordance with Customer’s instructions. Buildkite has no control over the nature, scope, or origin of, or the means by which Customer acquires, Customer Content processed by the Buildkite Solution. Customer is solely responsible for the accuracy, content and legality of all Customer Content submitted to the Buildkite Solution. Customer represents and warrants to Buildkite that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Buildkite the rights herein and that no Customer Content will violate or infringe (i) any third party Intellectual Property Rights or any publicity, privacy or other rights, (ii) any laws, rules or regulations, (iii) any terms of service, privacy policies or other agreements governing the Customer’s accounts with any Third Party Services or (iv) this Agreement. Customer will be fully responsible for any Customer Content submitted to the Services by any Team Member as if it was submitted by Customer. Customer specifically agrees not to collect, store, process or transmit any Sensitive Personal Information using the Buildkite Solution. Customer acknowledges that Buildkite is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Buildkite Solution is neither HIPAA nor PCI DSS compliant. Buildkite will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
      2. Aggregated Anonymous Data

        . Notwithstanding anything to the contrary herein, Customer agrees that Buildkite may use Aggregated Anonymous Data to analyze, improve, support and operate the Buildkite Solution and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Buildkite customers. For clarity, Aggregated Anonymous Data will not include Customer Data that has not been anonymized and aggregated with other Buildkite customer data and does not give Buildkite the right to identify Customer as the source of any Aggregated Anonymous Data.
      3. Storage of Customer Data

        . Customer Content is stored on Customer’s servers and the Buildkite Solution accesses the Customer Content in performing the Buildkite Cloud Services. Accordingly, Buildkite does not provide an archiving or data backup service for Customer Content. Buildkite agrees only that it will not intentionally delete any Customer Content from the Buildkite Solution prior to termination of Customer’s applicable Subscription Term. Further, Buildkite reserves the right to implement data retention policies which may result in the deletion of redundant and/or historical Customer Content. The Company shall notify the Customer in writing of any data retention policies and will not delete any Customer Content following that notice without giving the Customer reasonable notice (which shall be no less than 60 days). Buildkite may limit the amount of Customer Content that a User stores in the Buildkite Solution, and shall advise the User of such. Buildkite expressly disclaims all other obligations and liability with respect to storage and backup of Customer Content.
      4. Data Security and Data Privacy

        . Buildkite agrees to maintain appropriate technical and organizational measures with respect to the Buildkite Solution which are designed consistent with industry standards to prevent unauthorized access, use, alteration or disclosure of Customer Content; however, Buildkite will have no responsibility for errors in transmission, unauthorized third-party access, loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Content, the prevention of which is outside of Buildkite’s reasonable control. Buildkite’s Privacy Policy, shall apply to all disclosures of personal information and personal data by Users to Buildkite. To the extent applicable to Customer’s use of the Buildkite Solution, the parties will separately execute Buildkite’s standard form of Data Processing Addendum. In the event of any conflict between the terms set forth herein and the terms set forth the Privacy Policy, the terms set forth herein shall prevail.
  3. Customer Responsibilities.

    1. Access Credentials; Users

      . Customer will safeguard, and ensure that all Users safeguard the devices, computers, and networks used to access and use the Buildkite Solution and Customer’s Account and safeguard all Access Credentials. Customer will ensure that all its Users comply with the terms and conditions of this Agreement and will be responsible for all acts and omissions of its Users and for any access to or use of Customer Content by Users. Users are solely responsible for the security of their Access Credentials. Customer may only grant access to the Buildkite Solution to those Users who have been assigned unique Access Credentials. A single username or password may not be used by more than one (1) User. Sharing of Access Credentials by more than one (1) User is prohibited. Only the identified individual associated with unique Access Credentials is permitted to access the Buildkite Solution using such Access Credentials. Customer shall not provide access and revoke access to Users on a daily or other regular basis in order to circumvent Fees. Customer will notify Buildkite without undue delay if it learns of any unauthorized use of Customer’s Account or any Access Credentials. Customer will promptly notify Buildkite of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Buildkite with respect to: (i) investigation by Buildkite of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. Buildkite reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Buildkite deems necessary or reasonable to ensure the security of the Buildkite Solution and Customer’s Access Credentials and Account, including suspending or terminating Customer’s or its Users’ access and use of the Buildkite Solution or Customer’s Account until the security threat is resolved.
    2. Use Guidelines

      . Customer shall, and shall ensure that its Users will, use the Buildkite Solution solely for Customer’s own business purposes as contemplated by this Agreement and not for a third party and only for legal purposes. Customer agrees that it shall not, and shall ensure that its Users do not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Buildkite Solution or any component thereof available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Buildkite Cloud Services or disrupt any servers or networks connected to the Buildkite Solution, or disobey any requirements, procedures, policies or regulations of networks connected to the Buildkite Cloud Services; (iii) attempt to gain unauthorized access to the Buildkite Solution or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Buildkite Solution; (v) access or use Buildkite Solution in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); (vi) use the Buildkite Solution in violation of any applicable, law, rule, regulation or guideline; (vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Buildkite Solution or breach any security or authentication measures; or (viii) utilize the Buildkite Solution in order to send or store material in violation of applicable laws, rules or regulations or a third party’s rights or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant such malware on Buildkite’s computer systems, those systems of Buildkite’s third party service providers or vendors, or otherwise use the Buildkite Solution to attempt to upload and/or distribute viruses, malware or other harmful or malicious code. Buildkite may suspend a User’s access to and use of the Buildkite Solution in the event the User breaches any of the foregoing guidelines or restrictions.
  4. Fees and Payment.

    1. Fees.

      In consideration for the rights granted hereunder, Customer will pay to Buildkite the Fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form, as applicable. Unless otherwise specified in any Order Form, all invoices issued by Buildkite will be due and payable thirty (30) days after Customer’s receipt of the invoice. All fees are nonrefundable, except as expressly otherwise provided herein, and will be paid in U.S. dollars (unless otherwise agreed in an Order Form) and exclude all applicable sales, use, and other taxes. Buildkite shall have the right to introduce new Fees or change the Fees from time to time on fourteen (14) days prior written notice to Customer and such Fees will take effect at the start of the Customer’s next renewal Subscription Term.
    2. Taxes

      . As between Customer and Buildkite, Customer will be responsible for collecting and remitting all taxes related to the use of the Buildkite Solution. Customer will make all payments to Buildkite free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Buildkite, other than taxes based on Buildkite’s income, will be Customer’s sole responsibility, and Customer will provide Buildkite with official receipts issued by the appropriate taxing authority, or such other evidence as Buildkite may reasonably request, to establish that such taxes have been paid. Buildkite shall render a tax invoice to the Customer for any applicable taxes which the Customer agrees to pay within 5 business days of receipt by way of credit card, PayPal, bank transfer or other such manner as set forth in the applicable Order Form.
    3. Penalties for Late Payment

      . If the Customer does not pay the full Fees as required, the Company may suspend all User access to the Buildkite Solution and Customer’s Account upon ten days’ notice to Customer. If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s Account in Buildkite and this Agreement by immediate written notice. Customer agrees that Buildkite shall not be responsible or liable in any way for interruptions to the availability of Buildkite or loss of Customer Content as a result of the foregoing. Overdue Fees shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
  5. Confidentiality

    1. Confidential Information

      . Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, (i) the Buildkite Solution and the Buildkite Technology constitutes Confidential Information of Buildkite and (ii) the Customer Content constitutes Customer’s Confidential Information.
    2. Protection of Confidential Information

      . The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 5 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the Disclosing Party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.
    3. Exceptions

      . The Receiving Party’s obligations will not apply that portion of the Disclosing Party’s Confidential Information that the Receiving Party can document: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
    4. Return of Confidential Information

      . The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
    5. Confidentiality of Agreement

      . Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreeable press release; or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party to this Agreement).
  6. Warranties

    1. Warranties by Both Parties

      . Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security. Customer represents and warrants that it has all authority to establish, maintain and pay all Fees that become due under Customer’s Account.
    2. Buildkite Solution Warranty

      . Buildkite represents, warrants and covenants that (i) the Buildkite Solution will include the functionality provided in the Documentation, and (ii) the Support Services will be performed in a professional manner by skilled and experienced personnel. As Customer’s sole and exclusive remedy for any breach of the foregoing, Buildkite will use commercially reasonable efforts to modify or replace the nonconforming Buildkite Solution or reperform the nonconforming Support Services, or, if Buildkite is unable to correct the issue after using commercially reasonable efforts, Customer may terminate the affected Order(s) and receive a refund of prepaid Subscription Fees for the unused remainder of the Subscription Term following the termination date. Buildkite shall have no liability to Customer for a breach of the foregoing warranty if (i) Customer does not notify Buildkite of the breach within thirty days of first becoming aware of the breach or (ii) the breach is caused by a User’s acts or omissions or the failure of a Third Party Service.
    3. Disclaimer of Warranty

      . Except as expressly set forth in this section 6 (Warranties), Buildkite makes no other representations or warranties, whether, express, implied, or statutory, including without limitation regarding the Buildkite Solution, the Documentation, the Buildkite Technology, the Support Services, or otherwise with respect to the subject matter of this Agreement and expressly disclaims the implied warranties of merchantability, fitness for a particular purpose, title, and non infringement of third party rights as well as any warranty arising from course of dealing or usage of trade. To the maximum extent permitted by applicable law, Buildkite’s liability under any implied or statutory warranty, condition, term, representation, undertaking or guarantee which cannot be legally excluded is limited in respect of the Buildkite Solution to supplying the Buildkite Solution again or paying the cost of supplying the Buildkite Solution again.

      Buildkite shall not be responsible for ensuring and does not represent or warrant that: (i) the Buildkite Solution will meet Customer's business requirements; (ii) the Buildkite Solution will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable or that the Buildkite Solution will interoperate with Third Party Services or non-Buildkite supplied hardware, software or other materials; or (iii) all deficiencies in the Buildkite Solution can be found or corrected. Further, Buildkite will not be responsible for: (a) any warranty breaches caused by acts within the control of Customer or any User or interoperability of Third Party Services or specific Customer infrastructure or software with the Buildkite Solution; (b) the inability of Customer to access or interact with any other service provider (including any provider of Third Party Services) through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet.

      SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY.

  7. Ownership

    1. Customer Ownership

      . Customer owns all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein. Except for the rights and licenses expressly granted herein, all right, title and interest in and to all of the foregoing are reserved by Customer.
    2. Buildkite Ownership

      . Buildkite and its suppliers own all right, title and interest in and to the Buildkite Solution, the Buildkite Technology, the Aggregated Analytics, and the Documentation and all Intellectual Property Rights therein. Except for the rights and licenses expressly granted herein, all right, title and interest in and to all of the foregoing are reserved by Buildkite and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive either (x) a copy of the software underlying the Buildkite Cloud Services, or any other Buildkite Technology, in either object or source code form, or (y) the source code to any Buildkite Agents.
    3. Feedback

      . In the event Customer provides Buildkite any suggestions, enhancement requests, techniques, methods, know-how, comments, recommendations, feedback or other input with respect to the Buildkite Solution, including without limitation in response to any product plans or roadmaps shared with Customer (collectively “Feedback”), unless otherwise agreed in writing prior to such disclosure, Customer grants to Buildkite a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, reformat, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into the Buildkite Solution any developments (“Improvements”) incorporating or derived from any Feedback, provided that any Feedback or Improvements must not name or otherwise identify Customer. Further, Customer hereby assigns any rights it may have in or to the Aggregated Analytics to Buildkite and, if such assignment cannot be effected for any reason, Customer grant of license in this Section 7.3 shall expressly include a license to any rights Customer may have in the Aggregated Analytics.
  8. Indemnification

    1. Buildkite Indemnity

      . Buildkite shall defend (at Buildkite’s expense), Customer and its officers, directors and employees from and against any third party claims, suits, or proceedings (“Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of the Buildkite Cloud Service in accordance with the Documentation infringes any patent, copyright or trade secret rights of a third party arising under the laws of the United States, the United Kingdom, Canada, the European Union, Australia, New Zealand, Singapore, India or Japan and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Buildkite in settlement of the Claim. In the event that the Buildkite Cloud Services or any part thereof is likely to, in Buildkite’s sole opinion, or do become the subject of an infringement related Claim, and Buildkite cannot, at its option and expense, on a commercially reasonable basis, procure for Customer the right to continue using the Buildkite Cloud Services, or any part thereof, or modify the Buildkite Cloud Services, or any part thereof, to make them non-infringing, then Buildkite may terminate the affected Order Forms with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining Term. Buildkite shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Buildkite Cloud Services is the basis of the Claims; (ii) the use or combination of the Buildkite Cloud Services or any part thereof with software, hardware, or other materials not developed by Buildkite if the Buildkite Cloud Services or use thereof would not infringe without such combination; (iii) modification of the Buildkite Cloud Services by a party other than Buildkite, if the use of unmodified Buildkite Cloud Services would not constitute infringement; (iv) a breach by Customer or its Users of any obligation under this Agreement or a use of the Buildkite Cloud Services by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Documentation if the claim would not have arisen but for such breach or unauthorized use; (v) Customer Content or Third Party Services; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement. The foregoing states Buildkite’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
    2. Customer Indemnity

      . Customer shall defend (at Customer’s expense), Buildkite and its officers, directors and employees from and against any Claims brought against Buildkite or its officers, directors or employees by a third party (i) alleging that the Customer Content violates applicable laws, rules, regulations or guidelines, infringes the intellectual property rights or privacy rights of, or has otherwise harmed, a third party, (ii) arising out of or related to the Third Party Services or Customer’s or its Team Members use thereof, or (iii) based upon any User’s use of the Buildkite Solution not in accordance with the terms hereof or not in accordance with the Documentation.
    3. Indemnification Process

      . The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that does not fully release the indemnified party from liability or which seeks to impose liability, restrictions or other obligations on the indemnified party, without the indemnified party’s prior written consent.
  9. Limitation of Liability.

    1. Limitation of Liability

      . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
    2. Exclusion of Consequential and Related Damages

      . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
    3. Exclusions

      . The foregoing limitations shall not apply to (i) a party’s indemnification obligations in Section 8, (ii) damages or liability resulting from a breach of Sections 2.1, 3.2 or 5, or (iii) a party’s misappropriation or violation of the other party’s Intellectual Property Rights. Further, the foregoing limitations shall not be construed to limit Customer’s payment obligations for undisputed amounts payable pursuant to an Order Form.
    4. Savings Clause

      . Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
  10. Term and Termination

    1. Term

      . The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms have terminated or expired or until earlier termination of this Agreement as provided in this Section 10 (the “Term”). The term for each Order Form shall be as set forth therein. Upon termination of this Agreement for any reason, all Order Forms shall immediately terminate.
    2. Termination

      . Either party may terminate this Agreement if (i) the other party breaches this Agreement and fails to cure the breach within thirty (30) days of receipt of written notice describing the breach in reasonable detail and the action required to remedy the breach or (ii) the other party ceases to do business in the ordinary course, is insolvent, or any assignment is made of the other party's business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other party, or if a receiver or similar officer is appointed to take charge of all or part of the other party's property, or if the other party is adjudicated as bankrupt. Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to Buildkite prior to the effective date of termination; provided, that, unless Buildkite has terminated this Agreement for Customer’s uncured breach, Buildkite will refund any prepaid Subscription Fees paid by Customer for the unused Subscription Term following the termination date.
    3. Rights and Obligations Upon Expiration or Termination

      . Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the Buildkite Solution will immediately terminate, Customer and its Users will immediately cease all use of the Buildkite Solution and deinstall all Buildkite Agents, and each party will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
    4. Survival

      . Expiration or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiration or termination. Sections 1, 4, 5, 7, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
  11. General

    1. Marketing

      . Neither party has the right, without the prior written permission of the other party, to use the other party’s name or logo, or to make any public disclosures or announcements that would divulge the existence and nature of this Agreement, or the work to be performed hereunder; provided, however, that with Customer’s prior written consent and approval, Buildkite may issue a press release announcing the relationship of the parties created hereby. Further, Buildkite may list Customer as a customer of the Buildkite Solution on Buildkite’s website and in its marketing materials.
    2. Governing Law; Jurisdiction

      . This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall pay on demand all of Buildkite’s reasonable attorney fees and other costs incurred by Buildkite to enforce this Agreement or to collect any fees or charges due Buildkite hereunder.
    3. Export; Anti-Corruption

      . Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Buildkite Solution, provided, however that each party shall (a) limit the other party’s access and exposure to information and materials that are subject to export control laws to the extent possible in light of the relationship between the parties, and (b) prior to granting access or exposing the other party to information and materials subject to export control laws, clearly identify such information and materials as subject to export control laws and state which classification applies. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Buildkite Solution in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift of more than nominal value, or thing of value from any of Buildkite’s employees or agents in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Buildkite.
    4. Severability

      . If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    5. Waiver; Remedies

      . Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 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.
    6. Entire Agreement

      . To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. No modification, amendment, or waiver of any provision of this Agreement (or any Order Form) shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Buildkite with respect to future functionality or features for the Buildkite Solution. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
    7. No Assignment

      . Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement without such consent in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
    8. Force Majeure

      . Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by acts of God, wars, terrorism, acts of government, changes in laws, orders, rules or regulations, shortage of materials or embargos, pandemics, epidemics, earthquake, flood, natural disasters, travel restrictions, failures of utility providers, telecommunications providers or other third party service providers or suppliers, or any other event beyond the reasonable control of such party after taking commercially reasonable precautions, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    9. Independent Contractors

      . Buildkite’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
    10. Notices

      . All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd) day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party. Buildkite may send the User notices and other correspondence to the details that the User submits to Buildkite, or that the User notifies Buildkite of from time-to-time. It is the User’s responsibility to update its contact details as they change. Buildkite may also send notices to Users through the Buildkite Solution.
    11. Subcontractors

      . Buildkite may use the services of its affiliates and its and its affiliates’ third party subcontractors and service providers and shall have the right to permit them to exercise the rights granted to Buildkite hereunder in order to perform Buildkite’s obligations and exercise Buildkite’s rights under this Agreement, provided that Buildkite remains responsible for (i) compliance of any such third parties with the terms of this Agreement and (ii) for the overall performance of this Agreement.
    12. No Third Party Beneficiaries

      . The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to the Agreement may enforce it.
    13. Counterparts; Electronic Signatures

      . This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement, any Order Form delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement or the Order Form. If this Agreement is executed in counterparts, no signatory is bound until all parties have duly executed this Agreement.
    14. Federal Government End Use Provisions

      . If Customer is the United States federal government or an agency thereof, Buildkite provides the Buildkite Solution, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Buildkite to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
    15. Construction

      . The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.