CloudBees Jenkins Support Subscription Agreement


CloudBees Jenkins Support Subscription Agreement

This Support Subscription Agreement (the "Agreement") is entered into by and between CloudBees, Inc., a Delaware corporation with an address at 16192 Coastal Highway, Lewes, Delaware 19958 ("CloudBees") and the Customer set forth on the applicable Order Form. This Agreement provides the terms and conditions under which CloudBees provides a support subscription for Customer’s Jenkins Long Term Support (“LTS”) (“CloudBees Jenkins Support”) or Jenkins X deployments (“CloudBees Jenkins X Support”), as set forth in the applicable Order Form. This Support Subscription is offered to Customers who do not purchase any other subscriptions for products or services from CloudBees.

  1. Definitions

    Support Services are defined as CloudBees' response to Customer requests for diagnosis and resolution of issues with Customer’s Jenkins LTS and Jenkins X deployments, and to Customer questions regarding Jenkins features.

    Maintenance Services are defined as bug fixes to issues affecting the functionality, reliability, stability, availability or security of a Jenkins LTS or Jenkins X deployment. Fixes for bugs encountered on a supported version of Jenkins LTS and Jenkins X are only made available in a future Jenkins LTS or Jenkins X baseline. Fixes for bugs encountered in supported plugins are only made available in a future version of that plugins.

    User means an individual authorized by Customer to log into and use Jenkins LTS/Jenkins X directly or an individual authorized by Customer to perform code commits into a source control management system triggering jobs in or reporting results through Jenkins LTS/Jenkins X.

  2. Support Services. (a) Subject to the terms and conditions of this Agreement, CloudBees provides Support Services and Maintenance Services during the Subscription Term for Jenkins LTS and Jenkins X deployments pursuant to the terms set forth at https://www.cloudbees.com/r/supportterms, which are hereby incorporated into the terms and conditions of this Agreement. Support Services and Maintenance Services are available for installations of Jenkins LTS published on Jenkins.io and Jenkins X community distributions published on jenkins-x.io, and CloudBees Jenkins Distribution and CloudBees Jenkins X Distribution downloaded from www.cloudbees.com only. Support Services and Maintenance Services are limited to installations of Jenkins and Jenkins X communities distributions and CloudBees distribution versions released within the last 12 months. Support Services and Maintenance Services are limited to Jenkins LTS and plugins certified by CloudBees at https://www.cloudbees.com/r/approvedplugins and Jenkins X and components certified by CloudBees at https://www.cloudbees.com/r/jenkins-x-components. Support Services and Maintenance Services are only available for installations on Jenkins LTS or Jenkins X project supported platforms. CloudBees provides Support Services and Maintenance Services for Users and for operational issues. Neither Support Services nor Maintenance Services includes developer support for plugins. Neither Support Services nor Maintenance Services includes services for custom builds, other projects of the Jenkins community, or other open source projects. Neither Support Services nor Maintenance Services for Jenkins X provided pursuant to this Agreement include services for Jenkins LTS masters which are not managed by Jenkins X. Neither Support Services nor Maintenance Services for Jenkins includes services for Jenkins X. Neither Support Services nor Maintenance Services for Jenkins LTS provided pursuant to this Agreement include services for Jenkins LTS installations in orchestrated containerized cloud platforms including Kubernetes- or Mesos-based platforms. If CloudBees' diagnosis of a support case is inconclusive or identifies a bug in any Jenkins.io or CloudBees release older than the latest Jenkins LTS or Jenkins X release, Customer may be required to update to the latest version prior to any further efforts by CloudBees to resolve the support case. If diagnosis of a support case identifies the presence of non-certified plugins, Customer may be required to uninstall the non-certified plugins prior to any further efforts by CloudBees to resolve the support case. Older versions of certified plugins may be considered non-certified. If diagnosis of an issue with respect to a Jenkins project distribution installation is inconclusive after Cloudbees undertakes commercially reasonable efforts, Customer may be asked to migrate to the CloudBees Jenkins Distribution. If the customer requires direct assistance with such a migration, Customer can contract with CloudBees for professional services on an hourly or per-project basis. In this circumstance, if Customer does not successfully complete the migration, CloudBees is under no further obligation to diagnose the issue. (b) All unique Users must be covered by the number of Users licensed for Support Services on the applicable Order Form. CloudBees will not provide Support Services or Maintenance Services to Jenkins LTS or Jenkins X users who are not Users of a Customer purchased via a valid Order Form; (c) Customer acknowledges and agrees that this Agreement does not provide any license to CloudBees' software products, which are licensed pursuant to via a separate subscription license agreement.

  3. Subscription Term and Renewals. The term of each support subscription shall be set forth on the applicable Order Form ("Subscription Term") and shall for subsequent Subscription Terms unless terminated in accordance with the terms and conditions of this Agreement or if one party provides written notice at least 30 days in advance to the other party of its intention not to renew the Agreement.

  4. Payment Terms. All fees are as set forth in the applicable Order Form and shall be paid by Customer. All payments are non-refundable. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys' fees) incurred by CloudBees will be included in the amount owed by Customer. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to CloudBees hereunder, Customer agrees to gross up payments actually made such that CloudBees shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy. Payments will be made without right of set-off or chargeback. If payment of any fee is overdue, CloudBees may suspend provision of the Support until such delinquency is corrected.

  5. Termination. This Agreement may be terminated by either party upon written notice if the other party has materially breached this Agreement and failed to cure such breach within thirty (30) days written notice from the non-breaching party.

  6. Ownership. (a) Customer acknowledges that in the course of performing any Support Services or Maintenance Services, CloudBees may create software, configurations, modifications or other works of authorship (collectively "Work Product"). Subject to Customer’s rights in Customer’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and other confidential and proprietary information ("Confidential Information"), CloudBees shall own all right, title, and interest in and to the Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Support Services (a "Deliverable"), except for any products made available under a separate license, CloudBees grants to Customer an irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, perform, distribute (internally and externally), transfer, exploit and make derivative works of any such Deliverables. Subject to Customer’s rights in its Confidential Information, CloudBees and/or its successors and assigns shall be considered, forever and for all purposes throughout the universe, the author of the Work Product and the sole copyright owner thereof, and the owner of any rights therein, whether or not copyrightable, and all proceeds derived therefrom. (b) It is agreed and understood that CloudBees is in the business of providing products, support services, maintenance services, and consulting services to third parties which are or may be substantially similar to the Support Services and Maintenance Services and/or Deliverables being provided to or developed for Customer. CloudBees is free to use all of CloudBees' ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by CloudBees prior to, or acquired, developed, or refined by CloudBees ("Residual Knowledge"). It is not the intent of this Agreement to prevent CloudBees from pursuing its stated business by independently creating such original but similar works for the benefit of third parties provided that CloudBees does not use or disclose Customer’s Confidential Information. Such retention of Residual Knowledge shall be unaided and unintentional.

  7. Limited Warranty and Disclaimer. (a) CloudBees warrants that the Support Services and Maintenance Services to be performed hereunder will be done in a professional manner by employees with the requisite skill and qualifications. In the event of a breach of the foregoing warranty, CloudBees shall, as its sole obligation and Customer’s sole remedy, re-perform the applicable Support Services or Maintenance Services; provided that this remedy is only available if Customer gives CloudBees written notice of such breach within thirty (30) days of the delivery of the applicable Support Services or Maintenance Services. (b) SECTION 7(a) OF THIS AGREEMENT IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUPPORT SERVICES, MAINTENANCE SERVICES, DELIVERABLES, TRAINING MATERIALS AND ALL OTHER SERVICES OR MATERIALS PROVIDED TO CUSTOMER ARE PROVIDED "AS IS." CLOUDBEES DOES NOT WARRANT THAT THE SUPPORT SERVICES, MAINTENANCE SERVICES, DELIVERABLES, TRAINING MATERIALS AND ALL OTHER MATERIALS PROVIDED TO CUSTOMER WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THEY ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. CLOUDBEES MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

  8. Limitation of Remedies and Damages. CLOUDBEES SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. CLOUDBEES' TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY CLOUDBEES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER TO CLOUDBEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK NEGOTIATED BETWEEN THE PARTIES AT ARMS LENGTH, ARE ESSENTIAL AND MATERIAL TERMS OF THE AGREEMENT AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

  9. Amendments; Waivers. No supplement, modification, or amendment of the terms of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

  10. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the Products subscription, unless such terms and conditions are expressly stated as an amendment to this Agreement and duly signed on behalf of both parties.

  11. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.

  12. Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.

  13. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state courts of Virginia and United States federal courts located in the Eastern District of Virginia, and the parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.

  14. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures or its Streamlined Arbitration Rules & Procedures ("Rules"). The award rendered by the arbitrator shall be final and non-reviewable and non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the JAMS in accordance with its Rules. The seat or place of arbitration shall be Richmond, Virginia. The arbitration shall be conducted, and the award shall be rendered, in the English language. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award damages exceeding the amount identified in Section 8 of this Agreement, Limitation of Remedies and Damages.

  15. Survival. Sections 3 (Subscription Term and Renewals), 6 (Ownership), 7 (Limited Warranty and Disclaimer), 8 (Limitation of Remedies and Damages), and 14 (Arbitration), shall survive any termination or expiration of this Agreement.