Incredibuild License Agreement

PLEASE READ CAREFULLY THE TERMS OF THIS LICENSE AGREEMENT ( “AGREEMENT”) BEFORE ACCEPTING THIS AGREEMENT AND REGISTERING FOR, ACCESSING, DOWNLOADING OR USING THE INCREDIBUILD SOFTWARE PRODUCT IN OBJECT CODE FORM, (“SOFTWARE PRODUCT“) AND THE INCREDIBUILD CLOUD SERVICES (“CLOUD SERVICES”). BY SELECTING THE BOX “I AGREE”, “ACCEPT” OR OTHER SIMILAR BOTTON, OR OTHERWISE DOWNLOADING, ACCESSING OR USING THE SOFTWARE PRODUCT AND CLOUD SERVICES, YOU ACKNOWLEDGE THAT YOU, ON YOUR OWN BEHALF AS AN INDIVIDUAL AND ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY (COLLECTIVELY “LICENSEE”), HAVE READ AND UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ARE ENTERING INTO A BINDING LEGAL AGREEMENT WITH INCREDIBUILD SOFTWARE LTD. (“INCREDIBUILD”). YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER LEGAL ENTITY, THAT YOU HAVE FULL AUTHORITY TO BIND SAID EMPLOYER OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER LEGAL ENTITY, PLEASE DO NOT ACCEPT THIS AGREEMENT AND DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE PRODUCT AND CLOUD SERVICES. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NONELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.

Incredibuild may sell subscriptions to use the Cloud Services via online marketplaces which enable Licensee to connect to Incredibuild’s Cloud Services via Licensee’s marketplace account (“Marketplace“). If you purchase the Cloud Services via the Marketplace, all payments and license fees shall be made to, and processed by, the Marketplace operator and may be subject to additional terms and conditions applicable to the Marketplace.

If you have purchased the licenses granted hereunder from a partner, reseller or distributor authorized by Incredibuild (each a “Partner”), or via the Marketplace, to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Partner, including any purchase order or the Marketplace terms and conditions (as applicable) (the terms and/or order form between you and the Partner or Marketplace shall be referred to collectively as the “Partner Order Form”), then, as between you and Incredibuild, this Agreement shall prevail. Any rights granted to you in a Partner Order Form which are not contained in this Agreement, apply only in connection with such Partner or Marketplace (as applicable). In that case, you must seek redress, realization or enforcement of such rights solely with such Partner or Marketplace (as applicable) and not with Incredibuild.

1.  LICENSE.

The specific use rights granted to Licensee are as follows, depending on the type of license Licensee has acquired under the applicable Quote or Partner Order Form (as the case may be). For the purpose of this Agreement “Quote” means, any written or electronic order form (i) issued by Incredibuild and agreed to by Licensee by execution, or (ii) issued by Licensee pursuant to a proposal made by Incredibuild to Licensee, provided that such order incorporates by reference all terms and conditions specified on the proposal and that any terms and conditions printed, or linked to, within such order which are in addition to and/or inconsistent with the terms and conditions of this Agreement, shall be of no effect.

1.1 Subscription License. Subject to Licensee’s compliance with the terms and conditions of this Agreement (including, but not limited to, payment obligations), Incredibuild grants to Licensee, and Licensee accepts, a non-exclusive, non-sublicensable, worldwide, non-transferable limited license to use the Software Product and/or the Cloud Services (as applicable), during the Subscription Term (as defined below), solely by Licensee and/or its personnel, for Licensee’s internal business purposes (“Subscription License”). Licensee acknowledges that the Subscription License is subject to additional use restrictions and/or limitations specified in the Quote or the Partner Order Form (as the case may be), such as but not limited to, the maximum number of initiators and helper cores, and/or cloud hours and any other software editions or modules as designated and defined in the Quote or the Partner Order Form which, for the avoidance of doubt, are in addition to, and without derogating from, any other use restrictions set forth herein. Use of the initiator of the Software is allowed only on a single developer machine.

An “initiator” shall mean the Incredibuild agent executing the workload; a “helper core” shall mean the cores that participates in a build that was executed by the Initiator; “cloud hours” shall mean the helper cores up time on the cloud; a “CI” shall mean any machine initiating a workload that is not a developer workstation. Licenses can be either node-locked or floating as described in the documentation available at https://docs.incredibuild.com.

An initiator license is a node-locked license, unless otherwise approved in advance and in writing by Incredibuild, and cannot be used for CI machines. Per Licensee’s request, Incredibuild will issue a specific dedicated license for the purpose of using the Software Product and/or the Cloud Services for CI machines.

Use of any third-party applications provided by Incredibuild with the Software Product and/or the Cloud Services is expressly limited to use in conjunction with the Software Product and/or the Cloud Services, and may not be used independently, unless agreed otherwise between Licensee and the provider of the applicable third party application.

1.2 Evaluation License. Subject to Licensee’s compliance with the terms and conditions of this
Agreement, Incredibuild may, at its sole discretion, grant Licensee a non-exclusive, non-sublicensable, non-transferable limited license to use the Software Product, the Cloud Services or additional components or features provided by Incredibuild (“Feature“), for Licensee’s internal trial use in order to evaluate whether to purchase a subscription license for the Software Product, the Cloud Services or Feature (as the case may be). Such license shall be a free of charge, limited license to use the Software Product or the Cloud Services (as applicable) for a period of thirty (30) days, or the Feature for a trial period at Incredibuild’s discretion, or such other period prescribed by Incredibuild or the Partner in writing, or otherwise specified within the Marketplace (unless terminated earlier by either party according to Section 13 below) (“Evaluation Period”). The evaluation license may be subject to additional limitations as shall be prescribed by Incredibuild in writing. At any time during the Evaluation Period, or upon expiration of the Evaluation License, Incredibuild and Licensee may agree in writing by execution of an applicable Quote to enter into a Subscription License to use the Software Product the Cloud Service or the Feature (as the case may be), subject to payment of the applicable Subscription Fee, the terms of this Agreement and the terms set forth in the said Quote.

1.3 Community License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Incredibuild may grant Licensee, at its sole discretion, a non-exclusive, non-sublicensable, non-transferable, limited license to use a community version of the Software Product or the Cloud Services, for Licensee’s internal business purposes (“Community License”). The Community License may be offered directly by Incredibuild or within the Marketplace, and shall be free of charge, limited to the terms of Section 2 below, and additional terms (including without limitation, the scope and duration of the license) as shall be prescribed by Incredibuild, or specified within the Marketplace. The Community License to the Software Product is limited to use of one copy of the Software Product within a single computer of the Licensee, the Community License to the Cloud Services is limited to the scope
specified within the Marketplace. Incredibuild may, but is not required to, offer a limited amount of free of charge support hours with respect to the Community Licenses. For clarity, Incredibuild may at any time terminate the Community License upon notice to Licensee. Notwithstanding anything to the contrary, if Licensee installs or uses the community version of the License, Incredibuild may collect, gather and store analytics and telemetry data related to Licensee’s use thereof (“Telemetry Data”) and use such Telemetry Data without limitation of any kind during or after the expiration or termination of this Agreement (for clarity the rights to collect, gather and store the Telemetry Data shall survive the expiration or termination of this Agreement for any reason). Licensee may, at any point, prevent Incredibuild from further collecting new Telemetry Data by uninstalling the community version of the Software.

FOR THE AVOIDANCE OF DOUBT THE SOFTWARE PRODUCT AND/OR CLOUD SERVICES AND/OR FEATURE PROVIDED UNDER THE EVALUATION LICENSE AND/OR COMMUNITY LICENSE ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

INCREDIBUILD WILL HAVE NO INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE SOFTWARE PRODUCT AND/OR CLOUD SERVICES AND/OR FEATURE PROVIDED UNDER THE EVALUATION LICENSE AND/OR COMMUNITY LICENSE, AND SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT AND/OR CLOUD SERVICES, EVEN IF INCREDIBUILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2.  PROHIBITED USES.

Other than the rights explicitly granted in this Agreement, Licensee shall have no other rights, express or implied, in the Software Product and/or Cloud Services. Without limiting the generality of the foregoing, Licensee agrees and undertakes not to, directly or indirectly: (i) sell, lease, sublicense or distribute the Software Product, Cloud Services, or any part thereof, or otherwise transfer the Software Product and/or Cloud Services or allow any third party to use the Software Product and/or Cloud Services in any manner; (ii) reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form the Software Product’s and/or Cloud Services’ source code; (iii) modify, revise, enhance or alter the Software Product and/or Cloud Services; (iv) copy or allow copies of the Software Product and/or Cloud Services to be made except as provided under this Agreement; (v) use any backup or archival copies of the Software Product, or any part thereof, or allow any third party to use such copies, for any purpose other than to replace an original copy in the event of the destruction of the Software Product components, if the Software Product becomes defective; (vi) place the Software Product onto a server other than the designated server or otherwise make the Software Product accessible to other users or the public; (vii) use the Software Product and/or Cloud Services to provide third parties with managed services or any other services whether or not in return for remuneration of any kind; (viii) disclose the results of any testing or benchmarking of the Software Product and/or Cloud Services to any third party; (ix) remove or alter any trademarks or other proprietary right notices displayed on or in the Software
Product and/or Cloud Services; (x) circumvent, disable or otherwise interfere with security-related features of the Software Product and/or Cloud Services or features that enforce use limitations; (xi) export, make available or use the Software Product and/or Cloud Services in any manner prohibited by applicable laws; and/or (xii) store or transmit any malicious code (i.e., software viruses, Trojan horses, worms, robots, malware, spyware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software Product and/or Cloud Services.

Use of the Software Product and Cloud Services is subject to usage limits as defined in Quote or the Partner Order Form (as the case may be). If Licensee wishes to exceed its contractual usage limit, Licensee shall, (a) if purchase directly from Incredibuild, request additional usage scope of the Software Product and/or Cloud Services (as applicable) and submit such request to Incredibuild through email or the online store; (b) if purchased via a Marketplace purchase additional usage scope of the Cloud Services via the Marketplace; or (c) if purchased from a Partner request additional usage scope of the Software Product and/or Cloud Services (as applicable) from the Partner. Incredibuild, the Marketplace operator or the Partner (as applicable) may approve or reject the submission at its sole discretion in seven (7) days. Any extra charges and fees shall be provided by Incredibuild and Licensee shall pay the invoice for excess usage. Licensee will prevent unauthorized access to or use of the Software Product and/or Cloud Services and notify Incredibuild promptly of any such unauthorized access or use.

3.  DOCUMENTATION.

Incredibuild may make available to Licensee user’s guides and technical manuals (“Documentation”). The Documentation may be used by Licensee solely in connection with Licensee’s use of the Software Product and/or Cloud Services (as the case may be) during the Subscription Term. Licensee may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered Incredibuild’s Confidential Information (as defined below).

4.  CLOUD SERVICES.

The Cloud Services shall be provided on Licensee’s cloud account operated by a third party cloud partner who’s cloud interacts with Incredibuild’s technology (“Cloud Partner(s)”) and is subject to the terms of use or other agreement agreed between Licensee and the relevant Cloud Partner (“Cloud Partner Terms”). Licensee acknowledges and agrees that the Cloud Partner Terms are concluded between the Cloud Partner and Licensee only, and not with Incredibuild. All payments related to Licensee’s use of Cloud shall be paid directly to Licensee’s Cloud Partner.

The Cloud Services may be used through an Incredibuild account (“Account“), which may be accessed only by Licensee’s employees who are explicitly authorized by Licensee to use the Cloud Services, (each, a “Permitted User”). Licensee will ensure that the Permitted Users comply with the terms of this Agreement; and will be fully responsible for any breach of this Agreement by a Permitted User. Licensee will ensure that the Permitted Users keep the Account login details secure at all times, and shall be fully responsible for all activities performed by Permitted Users in relation to the Account.

Licensee hereby grants Incredibuild permission to: (i) create a virtual private cloud (“Virtual Private Cloud“) within Licensee’s Microsoft Azure Resource Group cloud, AWS Virtual Private Cloud or any other cloud account operated by a Cloud Partner that Incredibuild’s technology interacts with (as applicable) (each a “Cloud“) that is linked to Licensee’s Account; and (ii) manage such Virtual Private Cloud on Licensee’s behalf. Licensee agrees that Licensee shall not make any modifications to the Cloud and Incredibuild has no responsibility or liability for any such modifications made by Licensee or a Permitted User. In order to use the Cloud Services, Licensee must obtain a valid and stable communication with the Cloud Services mechanism. In case of lack of internet connectivity for a period exceeding those number of days specified in the Documentation, Incredibuild may prevent Licensee’s access to the Software Product and Cloud Services, including by way of locking the use remotely.

Licensee acknowledges and agrees that during the deployment and use of the Cloud Services, Licensee’s Cloud Partner may identify the installation of the Cloud Services and have access to certain data related thereto, as may be further detailed in the Cloud Partner Terms and the Cloud Partner’s privacy policy. Incredibuild does not control and assumes no liability for the Cloud Partner’s use of data or privacy practices and encourages Licensee to read the Cloud Partner Terms and the Cloud Partner’s privacy policy. For example, if Licensee uses Microsoft Azure as its Cloud Partner, when Incredibuild deploys Azure resources, Microsoft can identify Incredibuild’s installation and can correlate these resources to support the Cloud. Microsoft collects this information to provide its products and to operate its business. The data is collected and governed by Microsoft’s privacy policies, located at: https://www.microsoft.com/trustcenter, https://docs.microsoft.com/en-us/azure/marketplace/azurepartner-customer-usage-attribution.

Licensee hereby agrees to and hereby releases and forever discharges Incredibuild and its respective assigns from all claims, demands or damages arising out of or in any way related to any fee or amount, including, without limitation, taxes, billing, payments, processing, invoices, charged or overcharged by the Cloud Partner and any other issue or dispute relating thereto and/or related to the Cloud.

The parties agree that to the maximum extent permitted by law: (a) Incredibuild is merely utilizing the Licensee’s Cloud and is not providing the Cloud itself; (b) Incredibuild bears no responsibility or liability of any kind in relation to the Licensee’s Cloud, including, without limitation, in relation to any disputes between Licensee and the Cloud Partner and/or such third parties.

Licensee hereby agrees and acknowledges that the Cloud Partner (and not Incredibuild) shall provide Licensee with support and maintenance services related to the Licensee’s Cloud, and shall be responsible for the availability, and all other aspects, of the Licensee’s Cloud.

5.  INTELLECTUAL PROPERTY RIGHTS.

The Software Product and Cloud Services are not for sale and are Incredibuild’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software Product and Cloud Services and any and all improvements and derivative works thereof (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of Licensee, and irrespective of any support and/or assistance Incredibuild may, will or had received from Licensee, or any third party on its behalf, with respect thereto), as well as any updates thereto, are and shall remain owned solely by Incredibuild or its licensors. This Agreement does not convey to Licensee any interest in or to the Software Product and/or Cloud Services other than a limited right to use the Software Product and Cloud Services in accordance with the terms of this Agreement. Nothing herein constitutes a waiver of Incredibuild’s intellectual property rights under any law, or be in any way construed or interpreted as such.

If Incredibuild receives any feedback (e.g., questions, comments, suggestions or the like, whether orally or in writing) regarding the Software Product and/or Cloud Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Incredibuild and that such shall be considered Incredibuild’s Confidential Information and Licensee hereby irrevocably and unconditionally transfers and assigns to Incredibuild all intellectual property rights it has in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Incredibuild at its sole discretion, and that Incredibuild in no way shall be obliged to make use of any kind of the Feedback or part thereof. Portions of the Software distributed to Licensee as part of the Software Product and/or Cloud Services may include third party open source software (“Open Source Software”) that is subject to third party terms and conditions (“Third Party Terms”). A list of the Open Source Software and related Third Party Terms is available within the Incredibuild open source list available here, as may be updated from time to time by Incredibuild at its sole discretion. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related to such respective Open Source Software. Without derogating from the generality of the foregoing, it is clarified that any Open Source Software is provided on an “AS IS” basis, without warranty of any kind, whether express, implied or statutory. Notwithstanding anything in this Agreement to the contrary, Incredibuild is not liable for any losses or damages which may occur resulting from the use of any Open Source Software.

Any generic and anonymous information, which is derived from the use of the Software Product and/or Cloud Services (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information is Incredibuild’s exclusive property and may be used for any purpose including, but not limited to for development and/or for statistical purposes.

6. SUPPORT.

Incredibuild’s obligations under this Section 6 (Support) do not apply during an Evaluation Terms or with respect to a Community License. During the Subscription Term, subject to Licensee’s compliance with its obligations under this Agreement (including payments obligations) hereunder, Incredibuild will provide Licensee the following maintenance and support services: (i) assisting in the operation of the Software Product and Cloud Services, and (ii) assisting in verifying the causes of suspected errors. Maintenance and support services shall be available by e-mail based only during the operating hours of Incredibuild at the local support center (Sun-Friday, 9:00 am – 5:00 pm, GMT+2, not including holidays). Incredibuild will use commercial reasonable efforts to respond to Licensee as soon as reasonably possible after receipt of Licensee’s request for support. Nothing in this Agreement shall be construed as to require Incredibuild to dispatch personnel to Licensee’s site or otherwise provide on-site services.

Incredibuild maintenance and support obligations shall not apply if the failure of the Software Product and/or Cloud Services results from or is otherwise attributable to: (i) factors beyond Incredibuild’s reasonable control, including, without limitation, force major events; (ii) repair, maintenance or modification of the Software Product and/or Cloud Services by persons other than Incredibuild or its authorized contractors; (iii) accident, negligence, abuse or misuse of the Software Product and/or Cloud Services; (iv) use of the Software Product and/or Cloud Services other than in accordance with the Documentation; (v) Licensee’s failure to implement Revision (as defined below) provided by Incredibuild specifically to avoid such failure; or (vi) the combination of the Software Product and/or Cloud Services with equipment or software not authorized or provided by Incredibuild (collectively: the “Support Exclusions“). Incredibuild may from time to time provide updates or upgrades to the Software Product and/or Cloud Services (each a “Revision“), but is not under any obligation to do so. Such Revisions will be supplied according to Incredibuild’s then-current policies. All references herein to the Software Product and/or Cloud Services shall include the Revisions. This Agreement shall govern any Revisions that replace or supplement the original Software Product and/or Cloud Services, unless the Revision is accompanied by a separate license agreement which will govern the Revision.

7.  PAYMENT.

If Licensee has purchased any of the licenses granted under Section 1 directly from Incredibuild this Section 7 shall apply. In case Licensee purchased the license via a Partner or via the Marketplace, the license granted hereunder and the related services are subject to the full payment of the applicable fees as set forth in the Partner Order Form between Licensee and the respective Partner or the Marketplace terms and conditions (as applicable).

7.1 Subscription Fees. Licensee’s use of the Software Product and Cloud Services is subject to up-front payment in full of the subscription fees set forth in the Quote (“Subscription Fee”). Licensee acknowledges that the Subscription Fee during any Renewal Subscription Term will, unless set forth in the Quote, be determined by Incredibuild’s then-current subscription fees. Unless specified otherwise in the Quote, the Subscription Fees shall include payment for Incredibuild standard maintenance and support services.

7.2 Payment Terms. Unless specified otherwise in the Quote, payment shall be due within thirty (30) days of receipt of Incredibuild’s invoice which shall be issued at the beginning of each year during the Subscription Term. Any payment or part of a payment that is not paid by Licensee to Incredibuild when due shall bear interest at the rate of 1.5% per month or any part thereof (but shall not exceed the maximum rate allowed by applicable law) and shall constitute sufficient cause for Incredibuild to immediately suspend its performance hereunder and terminate this Agreement and the Subscription License. All fees are stated, and shall be paid, in US Dollars, by wire transfer to an account designated by Incredibuild, are non-refundable and are exclusive of all taxes, levies, or duties, which are Licensee’s responsibility.

7.3 Taxes. The Subscription Fee shall not be subject to any set-off or deduction and are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of Incredibuild. Licensee is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with this Agreement. Licensee agrees to hold harmless Incredibuild from all claims and liability arising from Licensee’s failure to report or pay such taxes, duties or other governmental charges. If Incredibuild will be required to pay any such taxes, then such taxes shall be billed to and paid by Licensee. If any taxes are required to be withheld, Licensee shall pay an amount to Incredibuild so that the net amount payable to Incredibuild after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement. Licensee agrees to hold harmless Incredibuild from all claims and liabilities arising from Licensee’s failure to report or pay any taxes.

8.  WARRANTIES.

Each party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

9.  CONFIDENTIALITY.

Each party may have access to certain non-public information of the other party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, and any other information that a reasonable person should have reason to believe is confidential, or competitively sensitive (the “Confidential Information”). Each party shall take measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section 9, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was 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 access to, or use of, the disclosing party’s Confidential Information. Neither party shall use or disclose the Confidential Information of the other party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party’s Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing party of such required disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.

10.  LIMITED WARRANTIES.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PRODUCT, CLOUD SERVICES AND ALL RELATED SERVICES ARE PROVIDED ON AN “AS IS” BASIS. INCREDIBUILD HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUALITY OF SERVICE. INCREDIBUILD DOES NOT WARRANT THAT THE SOFTWARE PRODUCT AND CLOUD SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.

INCREDIBUILD DOES NOT CONTROL, AND IS NOT RESPONSIBLE FOR, THE LICENSEE’S CLOUD, THE CLOUD PARTNER(S), THE MARKETPLACE OR ANY THIRD PARTY’S ACTS OR OMISSIONS, AND SHALL HAVE NO LIABILITY FOR ANY FAILURE, UNAVAILABILITY OR DEGRADATION OF THE LICENSEE’S CLOUD, CLOUD PARTNER, THE MARKETPLACE OR ANY THIRD PARTY BEYOND INCREDIBUILD’S REASONABLE CONTROL. THE INDEPENDENT MODIFICATION OF THE CLOUD PARTNER TERMS AND/OR LICENSEE’S CLOUD COULD ADVERSELY IMPACT THE FUNCTIONALITY OR QUALITY OF CLOUD SERVICES, AND INCREDIBUILD SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY (INCLUDING TO PROVIDE ANY REFUNDS) IF SUCH ADVERSE IMPACT OCCURS. INCREDIBUILD SHALL NOT BE RESPONSIBLE FOR ANY UNAVAILBILTY OF THE MARKETPLACE AND/OR ANY DISPUTES RELATED TO PAYMENT PROCESSING, INVOICING AND BILLING BY THE PARTNER/MARKETPLACE, OR LICENSEE’S PAYMENT OBLIGATIONS TO THE PARTNER AND.ORMARKETPLACE.

THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

11.  LIMITATION OF LIABILITY.

LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE PRODUCT AND CLOUD SERVICES. INCREDIBUILD ASSUMES NO LIABILITY FOR THE COST OF ANY SERVICE OR REPAIR IF THE SOFTWARE PRODUCT AND/OR CLOUD SERVICES ARE DEFECTIVE. INCREDIBUILD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WHETHER OR NOT INCREDIBUILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR INCREDIBUILD’S INDEMNIFICATION OBLIGATION UNDER SECTION 12; INCREDIBUILD’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO INCREDIBUILD UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION 11 DO NOT APPLY TO PAYMENTS DUE TO INCREDIBUILD UNDER THIS AGREEMENT.

THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.

12.  INDEMNIFICATION.

Incredibuild agrees to defend, at its expense, any third party action or suit brought against the Licensee alleging that the Software Product and/or Cloud Services, when used as permitted under this Agreement, infringes copyrights, patent or trademarks of a third party (“IP Infringement Claim”); and Incredibuild will pay any damages and liabilities awarded in a final judgment against the Licensee that are attributable to any such claim, provided that (i) the Licensee promptly notifies Incredibuild in writing of such claim; and (ii) Licensee grants Incredibuild the sole authority to handle the defense or settlement of any such claim and provides Incredibuild with all reasonable information and assistance, at Incredibuild’s expense. Incredibuild will not be bound by any settlement that the Licensee enters into without Incredibuild’s prior written consent.

If the Software Product and/or Cloud Services become, or in Incredibuild’s opinion are likely to become, the subject of an IP Infringement Claim, then Incredibuild may, at its sole discretion: (a) procure for Licensee the right to continue using the Software Product and/or Cloud Services (as the case may be); (b) replace or modify the Software Product and/or Cloud Services (as the case may be) to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Incredibuild’s reasonable efforts, then Incredibuild may terminate this Agreement and in such event accept return of the affected Software Product and/or Cloud Services (as the case may be) and provide a refund for any amount pre-paid by Licensee for such returned Software Product and/or Cloud Services (as the case may be) for the remaining unused period of the Subscription Term.

Notwithstanding the foregoing, Incredibuild shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software Product and/or Cloud Services made by a party other than Incredibuild or its designee; (ii) the Licensee’s failure to implement software updates provided by Incredibuild specifically to avoid infringement; or (iii) combination or use of the Software Product and/or Cloud Services with equipment, devices or software not supplied by Incredibuild or not in accordance with its documentation.

This Section 12 states Incredibuild’s entire liability, and Licensee’s exclusive remedy, for claims or alleged or actual infringement. Incredibuild’s indemnification obligation under this Section 11 and shall not apply to Licensee for Evaluation License and/or Community License.

13.  TERM AND TERMINATION.

This Agreement shall enter into force and effect on the earlier of: (i) the date that Licensee commences access to or use of the Software Product and/or Cloud Services; or (ii) the date that Incredibuild receives payment of any applicable Subscription Fees. Unless terminated earlier in accordance with the terms of this Section 13, this Agreement shall continue in full force and effect until expiration of the initial license period specified in the Quote or the Partner Order Form (as the case may be) (the “Initial Subscription Term“).

If the Subscription License is purchased directly from Incredibuild, this Agreement shall automatically renew for successive license of one (1) year periods (each a “Renewal Subscription Term“, and together with the Initial Subscription Term, the “Subscription Term“) unless Incredibuild or Licensee provides written notice to the other party within sixty (60) days prior to the expiration of the then current term of its intention not to renew this Agreement. If the Subscription License is purchased from the Marketplace or a Partner, the Subscription License shall renew in accordance with the terms specified within the Partner Order Form.

Incredibuild shall automatically and immediately cease to provide Cloud Services if, during a Subscription Term, Licensee terminates its Cloud and does not purchase an alternative Cloud. If Licensee continues to use the Software Product and/or Could Services past any license period renewal date, Licensee shall be deemed to have renewed this Agreement for the corresponding Renewal Subscription Term.

Notwithstanding the above, the duration of the Evaluation License and the Community License shall be in accordance with the provisions of Section 2 provided that Incredibuild may at any time terminate the Evaluation License and the Community License immediately upon notice to Licensee (email acceptable).

Either Party may terminate this Agreement with immediate effect, and Incredibuild may block the use of the Software Product and Cloud Services, if: (a) the other party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof; or (b) the other party is unable to pay its debts or becomes insolvent, is the subject of an order made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction), or is the subject of any events or circumstances analogous to the foregoing; or (c) Licensee has received the Software Product and/or Cloud Service and/or Feature pursuant to an Evaluation or Community License. Notwithstanding the foregoing, if Licensee has purchased a subscription to use the Software Product and/or Cloud Service via the Marketplace or a Partner, (a) the Marketplace operator and/or Partner (as applicable) may terminate and/or suspend Licensee’s use of the Software Product and/or Cloud Service in accordance with the Partner Order Form; and (b) Incredibuild may terminate this Agreement with immediate effect if Licensee fails to pay the applicable payments and license fees to Marketplace operator and/or Partner (as applicable).

Upon termination or expiration of this Agreement: (a) Licensee will: (i) immediately cease use of the Software Product and Cloud Services; (ii) return the Software and all copies thereof, as well as the Documentation to Incredibuild; (iii) erase or otherwise destroy all copies of the Software in its possession, which is fixed or resident in the memory or hard disks of its computers and certify in writing to Incredibuild that all copies (including partial copies) of the Software Product, Cloud Services and related Documentation have been returned to Incredibuild or otherwise erased, destroyed and deleted from any computer libraries or storage devices; and (v) return to Incredibuild any and all Confidential Information then in its possession; (b) Incredibuild will delete Licensee’s Virtual Private Cloud, including its entire content. Notwithstanding anything to the contrary, it is Licensee’s sole responsibility to check and verify that the entire content of Licensee’s Virtual Private Cloud (has been deleted and to remove the permission that Licensee provided to Incredibuild to manage its Virtual Private Cloud. Incredibuild is not responsible for any costs that may arise due to Licensee’s failure to delete and remove content from its Virtual Private Cloud. Termination of this Agreement shall be without prejudice to the rights and remedies of either Party which have accrued up to the date of termination. Sections 5 (Intellectuall Property Rights), 9 (Confidentiality), 10 (Limited Warranties) ,11 (Limitation of Liability), 15 (Usage Audit) and 17 (Miscellaneous) shall survive the termination of this Agreement.

14.  USE OF DATA.

14.1 Unless otherwise stated in a separate document (e.g. data processing agreement or privacy policy), during the process of registration to use the Subscription License, Incredibuild may request Licensee to provide its contact information, such as: full name, organization name, phone number, valid email address and similar data, and Incredibuild may use this information (i) to provide, maintain and improve the Software Product Cloud Services and other Incredibuild’s services, perform this Agreement, and for related purposes, and (ii) to contact Licensee to provide Licensee with important information, software updates, required notices, marketing promotions and related purposes. Incredibuild also reserves the right to use Licensee name and logo to present Licensee as a customer in Incredibuild’s website and other social media advertising or marketing promotions Incredibuild makes from time to time. Licensee agrees to serve as a reference customer of Incredibuild and will cooperate with Incredibuild’s reasonable marketing and referencing requests.

14.2 If Licensee needs to execute a Data Processing Agreement (“DPA”), Licensee is required to obtain the Incredibuild’s DPA and return a signed copy of the DPA to Incredibuild. In the event Licensee fails to execute such DPA when required to by law or regulation, or to comply with any applicable data protection or privacy law or regulation and/or any provision of the DPA, Licensee shall be solely and fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA.

15.  USAGE AUDIT.

Incredibuild may request that Licensee furnish it with a report with respect to the use by Licensee of the Software Product and/or Cloud Services in order to verify Licensee’s usage of the Software Product and/or Cloud Services in accordance with the terms of this Agreement. Without derogating from the foregoing, Incredibuild shall be entitled to audit Licensee’s usage of the Software Product and/or Cloud Services at Licensee’s facilities in order to verify proper usage in accordance with the terms herein. Such audits shall be scheduled a reasonable time in advance during Licensee’s normal business hours. If the audit uncovers any Licensee wrongful act, then, on top of any other applicable remedy available to Incredibuild at law or in equity, the cost of such auditing shall be borne by Licensee. By requesting an audit, Incredibuild does not waive its rights to enforce this Agreement or to protect our intellectual property by any other means permitted by law.

16.  EXPORT CONTROL.

Licensee acknowledges that the laws and regulations of the United States, as well as other foreign authorities, may restrict the export and re-export of certain commodities and technical data, including the Software Product Cloud Services and Documentation. Licensee agrees not to export or re-export the Software Product, Cloud Services and Documentation in any form without the appropriate United States and foreign governmental licenses.

17.  MISCELLANEOUS.

This Agreement represents the complete agreement concerning the subject matter hereof. Incredibuild reserves the right to modify this Agreement at any time by sending you a notification of such change (in case of a material change) and/or publishing the revised Agreement on Incredibuild’s website. Such change will be effective ten (10) days following the foregoing notification thereof. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Software Product and Cloud Services by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Licensee without Incredibuild’s written consent, but may be assigned by Incredibuild without restriction or notification. Any assignment in breach of this Agreement shall be null and void. This Agreement shall be governed by and construed under the laws of the State of Israel. The competent courts of Tel- Aviv, Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties. Incredibuild will not be liable for any delay or failure to comply with its obligations resulting from circumstances or causes beyond the reasonable control of the Incredibuild.