EXHIBIT A - CODE CLIMATE, INC.
MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF CODE CLIMATE’S SERVICE. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
THIS CODE CLIMATE MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) is made by and between Code Climate and Customer, as defined in the Order Forms referencing this Agreement.
1. SCOPE OF AGREEMENT. This Agreement governs Code Climate’s provision of services to You, subject to one or more ordering documents (each such document, an “Order Form”) describing the Services, each of which incorporates this Agreement by reference. In order to be binding, each Order Form must be signed by both parties. The parties may add Order Forms from time to time during the term of this Agreement. In the event of a conflict between a term of this Agreement and any Order Form, the Order Form shall govern.
2. DEFINITIONS. The following terms will have the following meanings: “Affiliate” means any entity that directly or indirectly owns or controls, is owned or controlled by, or is under the common ownership or control with a party, where ownership or control is denoted by having more than fifty percent (50%) of the voting power (or equivalent ownership interest) of the applicable entity. “Agent” means, where applicable, a unit of object code provided by Code Climate, that is required to be installed and operated on the equipment of an authorized user in order to access or use the Service, and any Updates thereto. “Seats” means the number of unique people who have an account to login to the Software; or who performed software development activities (including authoring commits, opening or reviewing pull requests, or creating or editing project management issues) within the last 30 days that have been analyzed by the Software and whom have not been excluded from reporting. Activity by non-human users like bots does not count as Seats. [“Service(s)” means collectively, the Agent and the Software.” “Software” means Code Climate's proprietary Code Climate software-as-a-service-application, together with all Updates and any related documentation made available to You by Code Climate (“Documentation”), and which is provided under the terms of this Agreement. “Updates” means an Agent or other Software release containing error corrections, minor enhancements, features, or functionality, in object code form, which is made commercially available by Code Climate at no additional charge, but excluding any Upgrades, and any corresponding changes to Documentation. “Upgrades” means new products and product tiers made commercially available by Code Climate pursuant to a separate license agreement and for which an additional fee(s) may apply.
3. LICENSE. Subject to the terms of this Agreement and Your payment of all applicable Subscription Fees (defined below), during the subscription term (as specified in the Order Form), Code Climate hereby grants to You a revocable, non-exclusive, non-transferable, non-assignable (except as provided in Section 14.1) right and license (a) to access and use the Software for the number of Seats specified in the Order Form; (b) if “Agent” is indicated on the Order Form, to download and install the Agent solely to facilitate analysis of Your software products in an on-premise environment, as applicable; and (c) to use the Documentation solely for Your internal operation and use in connection with the foregoing.
4.1 GENERAL. The licenses granted to You under this Agreement are granted solely to You for use by the authorized users (i.e., the number of Seats) and/or Affiliates identified in the Order Form. You may not assign, sell, rent, lease, sublicense, lend, transfer, resell, or distribute the Service to any third party or use the Service on behalf of any third party unless otherwise agreed to in writing by Code Climate in its sole discretion. You agree not to copy the Service, in whole or in part, except that You may make copies of the Documentation for backup and archival purposes only. You agree not to modify, obscure, or delete any proprietary rights notices included in or on the Service or Documentation. You may not modify the Service, make derivative works based on the Service, or merge the Service into any other computer programs. You may not reverse engineer, disassemble, or decompile the Service, in whole or in part, or otherwise attempt to derive its source code. You agree to use the Service in compliance with all applicable laws and regulations, including, without limitation, applicable export control laws and regulations of the United States and other jurisdictions. You are solely responsible for maintaining the confidentiality and security of your username and password, and You will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by You.
4.2 SEATS. The licenses granted to You under this Agreement are limited to the number of Seats set forth in the Order Form. While the number of Seats you purchase is in Your discretion, You acknowledge that a separate Seat is required for each user who would like to view the analysis results provide by the Service, and for anyone whose software development activities you would like to analyze. Each such authorized user will be supplied with separate login credentials (i.e. user IDs and passwords) by Code Climate, and only one user account may be associated with a particular Seat. In addition, only one person may use a user account; two or more people may not share a user account. If a user account is deleted, You may create a new user account associated with the corresponding Seat. If You desire to use the Service in excess of the Seats specified in the Order Form, You may purchase additional Seats. If you use the Service in excess of the number of Seats specified in the Order Form, and have not purchased those additional Seats from Code Climate previously, then Code Climate reserves the right to invoice you for the then-current cost of such additional Seats, plus an additional 10%. Except as otherwise set forth on an Order Form, Code Climate generally sells additional Seats in packs of 10. Any such invoice will be due within 30 days of the date of the invoice. Additionally, if, at the time of renewal, the active Seat quantity exceeds the number of purchased Seats, then Code Climate will adjust the Seat quantity for the renewal term to the lowest multiple of 10 Seats to accommodate the then-current Seat usage. In order to ensure compliance with the terms hereof, You agree that Code Climate may monitor the number of Seats actually used by You during the applicable subscription term.
4.3 U.S. GOVERNMENT. Where applicable, Code Climate provides the Service for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service 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 Code Climate 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.
4.4 CLOUD SUBSCRIPTIONS. Customer is responsible for any network or internet connectivity required to access or use the Software over the Internet. Customer consents to the processing and storage of Customer data and content (collectively, “Customer Materials”) uploaded to the Software on hardware owned or controlled by third party service providers (i.e. AWS) that are used in connection with the provision of the Service. In addition to the restrictions in Section 4.1 above, Customer will not (a) use the Software to transmit to or make available any denial of service attack, virus, work, Trojan horse or other harmful code or activity, (b) attempt to probe scan or test the vulnerability of the Software, or (c) use the Software in a way that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Code Climate cloud infrastructure.
4.5 THIRD PARTY SERVICES. In addition to the provisions of Section 4.4 above, Customer acknowledges that Code Climate may also distribute, use and provide the Customer Materials to Code Climate’s service providers who act on Code Climate’s behalf in providing the Service (e.g. third party web hosting providers); as well as to third parties chosen by Code Climate that are used to provide various additional Services (and enhancements), and which can be provided for the benefit of Customer, (e.g., analytics services, and any other value-added services which may be offered by Code Climate from time to time in connection with the Services provided under this agreement, as applicable).
5. TITLE. Code Climate and its licensors own all rights, title, and interest in and to the Service and Documentation, as well as the Analytical Information (as defined in Section 12 below). Your rights to the Service and Documentation limited to the license expressly granted to You in this Agreement. Code Climate reserves all rights not expressly granted in this Agreement. In addition, Code Climate will have a perpetual right, but not the obligation, to use and incorporate into the Service any feedback or suggestions for enhancement that You provide to us concerning the Service (“Feedback”), without any obligation of compensation to You.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement takes effect on the date You first sign an Order Form incorporating these terms and, unless sooner terminated as set forth in this Agreement, will remain in effect until all applicable Order Forms have expired or been terminated. The term of each subscription will be described in the applicable Order Form. Except as otherwise described in an Order Form, subscriptions for a Service will automatically renew for additional periods equal in length to the expiring subscription term unless either party provides notice of non-renewal at least thirty (30) days prior to commencement of the next renewal term. Code Climate will notify You in writing ninety (90) days prior to the end of the then-current subscription term of any price increases that are greater than ten percent (10%) and which will be in effect for the subsequent renewal term(s).
6.2 TERMINATION FOR BREACH; SUSPENSION. Either party may i terminate this Agreement if the other party breaches any material term of this Agreement and, if such breach is capable of cure, the terminating party gives the breaching or defaulting party written notice of termination specifying the underlying breach or default within thirty (30) days of discovery of such breach or default, and such breach or default remains uncured thirty (30) days after the breaching or defaulting party receives the notice. Solely in the event of any termination by Customer for cause due to Code Climate’s uncured breach, pursuant to this Section 6.2, Customer will be entitled to a pro-rata refund of those unused Fees that were previously paid, based on the date of termination. In addition to, and without limiting the foregoing, Code Climate may discontinue or suspend Customer’s access to the Service immediately if (a) Customer fails to make a payment for 30 days following notice of its due date; (b) Customer has (or Code Climate reasonably suspects that it has) breached or misappropriated or infringed Code Climate’s intellectual property or proprietary rights in the Service as determined by Code Climate in its sole discretion; and/or (c) Code Climate reasonably believes that Customer’s acts or omissions hereunder could otherwise cause material detriment to its brand and/or pose significant legal risk to Code Climate. Code Climate will propmptly restore access to the Service only after such violation(s) has been cured (if the violation is capable of cure).
6.3 EFFECT OF TERMINATION. Upon termination or expiration of this Agreement (a) the subscription term shall end; (b) all licenses and rights to use the Service granted to You hereunder shall immediately terminate; and (c) Code Climate may disable access to the Service. Those provisions of this Agreement that by their terms or sense are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect, including, without limitation, Sections 1, 4.1, 5, 6.3, 8, 9.3, 10, 11, 12, 13, and 15, together with any and all outstanding payment amounts then owed to Code Climate.
7.1 GENERAL. Subject to Your compliance with Your payment obligations under this Agreement, Code Climate will provide You with technical support (“Support”) during its regular business hours: 10:00 am to 5:00 pm Eastern Time, Monday through Friday, excluding observed holidays. Support will be provided by email. Support includes: (a) assistance related to questions on the installation and operational use of the Service; (b) assistance in identifying and verifying the causes of suspected errors in the Service; and (c) providing workarounds for identified Service errors or malfunctions, where reasonably available to Code Climate. You will use commercially reasonable efforts to ensure that only persons properly trained in the operation and usage of the Service will use the Support. Code Climate will also provide you with the training services set forth in the Order Form, if applicable.
7.2 ERROR CORRECTIONS. Throughout the subscription term, Code Climate will use its commercially reasonable efforts to correct any reproducible error in the Agent with a level of effort and within timeframes commensurate with the severity of the error and consistent with general industry standards for similar support services. Code Climate will have no obligation to correct all errors in the Agent. Upon identification of any error, You will notify Code Climate of such error and provide Code Climate with enough information for Code Climate to reproduce the error.
7.3 LIMITATIONS. Code Climate will not be responsible for correcting any errors not reproducible by Code Climate on the unmodified Service or errors caused by: (a) Your failure to implement all Updates provided by Code Climate under this Agreement; (b) changes to the operating system or environment which adversely affect the Service; (c) any alterations of or additions to the Service made by parties other than Code Climate; (d) use of the Service in a manner for which it was not designed; or (e) accident, negligence, or misuse of the Service. Code Climate will only be obligated to support a particular version of the Agent for a period of one (1) year from the date of release of such version or through six (6) months following the date of release of the subsequent Agent version (Update), whichever is longer. Support for any earlier versions or for errors not covered under this Agreement may be obtained, if available, at Code Climate's then-current rates. While Code Climate does routinely backup its Service, Customer acknowledges that it remains responsible for backing up all of its Customer Materials, and that Code Climate will not have any liability to Customer for any loss of any of the Customer Materials whatsoever in connection with use of the Service.
8. PAYMENT. You agree to pay to Code Climate the subscription fees set forth in any Order Forms (“Subscription Fees”) and any setup fees set forth in any Order Forms ("Setup Fees" and collectively, with Subscription Fees, "Fees"). You are solely responsible for providing Code Climate accurate and complete billing and contact information and for notifying Code Climate of any changes to such information. You will pay all amounts due to Code Climate in full within thirty (30) days from the date of each invoice. All amounts payable under this Agreement are denominated in and shall be payable in United States Dollars. Except as otherwise expressly set forth in this Agreement or in an Order Form, if applicable, all annual Subscription Fees are due up-front, in full, and are non-refundable. In addition, You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Code Climate's net income) that are imposed or become due in connection with the subject matter of this Agreement. Fees are non-refundable except as expressly provided in this Agreement or as otherwise agreed to in writing by Code Climate in its sole discretion.
9. WARRANTIES AND DISCLAIMER.
9.1 MUTUAL WARRANTIES. Each party represents and warrants that: (a) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant and/or exercise the rights granted hereunder; and (b) it shall comply with applicable local, state and federal laws, rules and regulations applicable to such party in connection with its use of and/or provision of the Service respectively.
9.2 ADDITIONAL WARRANTIES.
9.2.1 Code Climate warrants that (a) the Service will not contain or transmit any computer code or other technology specifically designed to disrupt, disable, harm, or otherwise impede in any manner, any other software, hardware, computer system, or network (sometimes referred to as “malware”, “viruses” or “worms”); (b) any services performed by Code Climate pursuant to this Agreement will be performed in a good and workmanlike manner by appropriately qualified and trained personnel; and (c) the Service will perform in all material respects in conformance with the Documentation.
9.2.2 Customer represents and warrants that: (a) it has and will have at all times all necessary rights to provide the Customer Materials to Code Climate hereunder; and (b) neither the Customer Materials, nor Code Clmate’s use thereof under this Agreement, will violate or infringe upon any third-party proprietary or intellectual property right, nor violate any applicable law, rule or regulation.
9.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND THE DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY CODE CLIMATE HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND CODE CLIMATE MAKES NO WARRANTY WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND CODE CLIMATE DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
10. LIMITATION OF LIABILITY.
10.1 NO CONSEQUENTIAL OR RELATED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED TWO TIMES THE FEES PAID OR PAYABLE BY YOU TO CODE CLIMATE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
10.3 EXCEPTIONS. The exclusions and limitations of liability in this Section 10 will not apply to (a) either party’s indemnification obligations under Section 11; (b) either party's breach of its confidentiality obligations under Section 12; and/or (c) any unauthorized use of the intellectual property rights of one party by the other party, including but not limited to, Customer’s violation of any of the restrictions set forth in Section 4.1 above (collectively, the “Excluded Damages”); provided, however, that with respect to the Excluded Damages, neither party’s total liability for all claims arising under this Agreement will exceed the lower of: (a) ten (10) times the amount of fees paid or payable to Code Climate in the twelve (12) months preceding the claim, or (b) one million dollars ($1,000,000.00), in the aggregate.
11.1 INDEMNITY. (a) Code Climate will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (“Claim”), and shall indemnify You for any damages, attorney fees, and legal costs finally awarded against You as a result of such Claim (“Losses”); provided that You (i) promptly give Code Climate written notice of such Claim; (ii) give Code Climate sole control of the defense and settlement of such Claim (provided that Code Climate may not settle any Claim against You without Your consent unless the settlement unconditionally releases You of all liability); and (iii) provide to Code Climate all reasonable assistance. You may not settle or compromise any Claim, except with Code Climate’s prior written consent. (b) Customer shall indemnify, defend and hold Code Climate harmless from and against any and all Losses arising in connection with any Claims: (i) arising out of a Customer Indemnity Responsibility (as defined in Section 11.2 below); or (ii) otherwise arising out of Code Climate’s use of any Customer Materials in connection with the Service.
11.2 EXCEPTIONS. Code Climate will have no obligation to indemnify You for any Claim under Section 11.1 to the extent that the Claim results from: (a) modifications to the Service made by a party other than Code Climate, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation, or use of the Service with equipment, devices, software, systems, or data not supplied, approved, or intended by Code Climate, if the infringement or misappropriation would not have occurred but for such combination, operation, or use; (c) Your failure to use updated or modified Service provided by Code Climate to avoid infringement or misappropriation; (d) Your failure to stop using the Service after receiving written notice to do so from Code Climate in order to avoid infringement or misappropriation; or (e) Your use of the Service other than as authorized by this Agreement (collectively, “Customer Indemnity Responsibility”).
11.3 RIGHT TO AMELIORATE DAMAGES. If use of the Service is, or in Code Climate's reasonable opinion is likely to be, subject to a Claim under Section 11.1, Code Climate may, at its sole option and at no additional charge to You: (a) procure for You the right to continue using the Service; (b) replace or modify the Service so that it is non-infringing and substantially equivalent in function to the original Service; or (c) if options (a) and (b) above are not accomplished despite Code Climate's commercially reasonable efforts, terminate this Agreement (in which event, You will immediately stop using the Service) and refund the unused Subscription Fees previously paid by You to Code Climate for the affected Service for the then-current subscription term, on a pro-rata basis based on the date of termination.
11.4 SOLE REMEDY. THIS SECTION 11 SETS FORTH CODE CLIMATE'S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SERVICE.
12. CONFIDENTIALITY. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may share certain information of a confidential nature during the subscription term. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, and/or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, the non-public facing aspects of the Service; the source code for the Service; product roadmaps; pricing; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information. The Receiving Party agrees, for itself and any Affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement (e.g., in the case of Code Climate, in order to provide the Service)) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the confidentiality of the other party's Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Without granting any right or license, the Disclosing Party agrees that the foregoing will not apply with respect to information that the Receiving Party can document (a) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the Receiving Party or any Affiliate, agent, or employee (provided, however, that an item of Confidential Information shall not be considered in the public domain due to the fact that the individual elements that comprise that item can be found in the public domain); (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without violating any obligations to the Disclosing Party; (d) is independently developed by the Receiving Party without reference to such Confidential Information; or (e) is compelled to be disclosed pursuant to any statutory or regulatory authority, court order, or legal process, provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible. Notwithstanding the foregoing, Code Climate may calculate aggregate, anonymized statistics about its customers’ data and use those statistics and data (collectively, “Analytical Information”) . Such Analytical Information does not include any information that personally identifies the Customer or the specific identity of any authorized user. Customer acknowledges that Code Climate may use such Analytical Information for purposes of providing the Service, as well as for sales, marketing, business development, product enhancement and development, and/or customer service.
13. GOVERNING LAW AND JURISDICTION. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, New York, in the borough of Manhattan, and the parties irrevocably consent to personal jurisdiction and venue therein.
14. Insurance. Code Climate shall maintain in full force and effect, all insurance coverages required by law in amounts sufficient to provide coverage for any liabilities which may reasonably result from its obligations in providing the Service pursuant to this Agreement.
15.1 ASSIGNMENT. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to a corporate Affiliate and/or in connection with a merger, acquisition, transfer, corporate reorganization, or sale of all or substantially all of its assets or equity. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.2 SEVERABILITY. In the event that any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.
15.3 NOTICES. All notices provided hereunder will be in writing, delivered personally, by e-mail or sent by overnight courier, registered or certified mail to the addresses specified in the signature lines below or such other address as may be specified in writing by notice given in accordance with this Section 14.3. All such notices will be deemed to have been given: (a) upon receipt when delivered personally; (b) upon receipt when delivered by e-mail; or (c) in the case of overnight courier, one weekday after delivery to the overnight courier.
15.4 WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. 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.
15.5 FORCE MAJEURE. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, communication line failure, and power failures.
15.6 INDEPENDENT CONTRACTORS. Code Climate and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between Code Climate and You.
15.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts, (which may be exchanged electronically (e.g., by PDF or DocuSign, etc.) or facsimile), each of which when so executed will be deemed an original, and all of which together will constitute one and the same agreement.
15.8 AMENDMENTS; ENTIRE AGREEMENT. No modification, change, or amendment of this Agreement shall be binding upon the parties, except by mutual express consent in writing of subsequent date duly signed by the authorized representatives of each of the parties. This Agreement, including any Order Forms, constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes any and all prior understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement.
15.9 PUBLICITY. You hereby grant Code Climate a license to use Your name, logos, and marks in advertising, marketing, promotional materials, publicity, client lists, press release, case studies, references, Internet posting, or otherwise in a manner similar to how Code Climate uses the names, logos and marks of other clients.
15.10 NOTICE REGARDING CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”); DATA PRIVACY. To the extent Customer discloses Personal Information of California consumers or households to Code Climate, Code Climate may be considered a “service provider” as defined in CCPA Section 1798.140(v), as applicable. Code Climate acknowledges and agrees that Customer discloses Personal Information to Code Climate solely for: (i) a valid business purpose; and (ii) Code Climate to perform the Services as set forth in this Agreement. Code Climate is prohibited from: (i) selling Personal Information; (ii) retaining, using, or disclosing Personal Information for a commercial purpose other than providing the services to Customer; (iii) retaining, using, or disclosing the Personal Information outside of the direct business relationship between Code Climate and Customer; or (iv) using the Personal Information to provide services to another person or entity. Code Climate hereby certifies it understands and will comply with these obligations and restrictions in accordance with the CCPA. Furthermore, Code Climate agrees to reasonably assist Customer in responding to any requests from a California consumer or household exercising their rights under the CCPA. Further, the disclosure of Personal Information to Code Climate does not constitute the “sale” of Personal Information. For purposes of this Notice, “Personal Information” is defined in CCPA Section 1798.140(o). Further, this Notice is effective for the Term of the Agreement. In addition, in the event that any non-US personal data is to be processed by Code Climate pursuant to this Agreement, the parties agree to enter into Code Climate’s then-current Data Processing Addendum