Master Subscription Agreement
Last Updated: May 24, 2023
This Master Subscription Agreement contains terms and conditions that govern your purchase and use of the Subscription Services (as defined below) and is a contract between DeepSource Corp. (“DeepSource”), and you or the entity or organization that you represent.
If you are an individual using the Subscription Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Subscription Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Subscription Services, (2) when you click an “I Accept,” “Sign up” or similar button or checkbox referencing the Master Subscription Agreement, or (3) when you enter into an Order Form (as defined below) with DeepSource. Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 12 below.
1. Grant of Rights and Restrictions
1.1 Access and License: This Agreement sets forth the terms pursuant to which Customer may access and use the Subscription Services in connection with one or more Order Forms. Subject to the terms of the Agreement and the applicable Order Form, DeepSource grants to Customer solely for its internal business operations a non-exclusive, non-transferable (a) right to access and use the Cloud Service; (b) license to use the Command Line Interface solely as required to use the Subscription Services; (c) license to use the Software and Documentation; and (d) perpetual license to use the Generated Code. The Software and Command Line Interface may include open source software not owned by DeepSource. In each such case, Customer’s licensed rights to such open source software code are determined by the applicable third party license and not this Agreement. Customer is responsible for its Authorized Users compliance with the terms and conditions of the Agreement.
1.2 Customer Data: By submitting Customer Data to or in connection with the Cloud Service, Customer hereby grants to DeepSource the right, and is expressly instructing DeepSource, including its Affiliates and subcontractors, to process Customer Data for the limited purpose of providing the Cloud Service. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to DeepSource so that DeepSource and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf.
1.3 Excluded Data: Except for Account Data, Customer shall not provide DeepSource with any Customer Data that constitutes personal data or is otherwise subject to heightened security requirements by law or regulation or contract (examples include but are not limited to Social Security numbers in the United States, protected health information under the U.S. Health Insurance Portability and Accountability Act, nonpublic personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard) (such data referred to collectively as “Excluded Data”). DeepSource shall have no responsibility or liability for the Excluded Data. The parties agree that Customer and DeepSource are independent controllers with respect to Account Data, and each party will comply with its obligations and agrees to provide reasonable assistance to the other party when required by applicable privacy laws.
1.4 Support and Maintenance Services: Support and maintenance will be provided to the Customer if customer has subscribed to Support and Maintenance Services in the applicable Order Form. The applicable fees for such support and maintenance shall be specified in the Order Form. The Customer shall provide DeepSource and its personnel with necessary access to Customer’s account including the ability to access the account as those of Customer’s employees and its IT administrator(s), for such time as required for resolving the problems raised by the Customer with respect to the Subscription Services. The details of the support and maintenance services are mentioned under Schedule A of this Agreement.
1.5 Cloud Service Levels: Subject to the terms hereof, DeepSource will make the Cloud Services available as described in the Cloud Service Level Addendum, attached hereto as Schedule B.
1.6 Modifications: The Subscription Services and Documentation may be modified by DeepSource, provided that any such modification does not materially reduce the service level commitments, support, or overall level of beneficial service provided to Customer prior to such modification with respect to the same Order Form.
1.7 Third Party Products: Customer’s use of Third Party Products is at its own risk and subject to the third party provider’s terms and conditions and privacy policies. DeepSource does not provide support or guarantee ongoing integration support for such Third Party Products that are not a native part of the Subscription Services.
1.8 Responsibilities: No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Subscription Services; (b) attempt to gain unauthorized access to any Subscription Services or its related systems or networks; (c) use any Subscription Services to access DeepSource’s intellectual property rights except as permitted under this Agreement; (d) modify, copy or create any derivative work based upon any Subscription Services or any portion, feature or function of any Subscription Services; (e) resell, distribute or otherwise make available any Subscription Services to any third party, including as part of a managed services offering; (f) except to the extent limited by applicable law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Subscription Services or access or use the Subscription Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Subscription Services; (h) send or store Malicious Code; (i) use or permit others to use the Subscription Services in violation of applicable law; or (j) use or permit others to use the Subscription Services other than as described in the applicable Order Form, Documentation and this Agreement. Customer shall (and shall cause its Authorized Users to) comply at all times with the DeepSource Acceptable Use Policy, and incorporated by reference herein.
1.9 Software Restrictions and Responsibilities: The parties agree that the Software shall be deployed on such site as agreed to in the Order Form (“Installation Site”) understand that the usage of the Software shall be restricted to the specified number of individual Users specified in the relevant Order Form. Software is only available via electronic download and will not be available to Customer in any other format. The Software Subscription Key is required to enable the Software and only valid during the Subscription Term. Customer will not (a) share access credentials of Authorized Users with any other individuals or third parties; (b) attempt to circumvent, disable, or defeat any limitations encoded into the Software Subscription Key; (c) assign, transfer, or distribute any materials provided to a specific Authorized User to any third party or any other Authorized Users (d) electronically transmit the Software from one computer to another or over a network; copy the Software or Documentation, in whole or in part; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation; (f) except as expressly provided for in this Agreement, use the Software in connection with any deployed computer system; (g) permit third parties to use the Software or Documentation, or develop or deploy any system or software including the Software for use by any third parties. DeepSource will not be responsible for any activities, including any attempted or actual access or loss of Customer Data as a result of Customer’s non-compliance of its obligations under this Agreement. Customer shall be solely responsible for i) procurement, maintenance and security of the private cloud environment on which the Software is deployed; ii) ensuring the accuracy, legality, reliability and sufficiency of Customer Data to be processed by the Software; and iii) providing site access, system access and access to DeepSource or its designee for the provision, support, maintenance and improvement of the Software.
1.10 Suspension: DeepSource reserves the right to investigate potential violations of the above provisions of Section 1.6 and 1.7. In the event DeepSource reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 3 below), DeepSource will have the right to suspend Authorized Users suspected of the violation from accessing the Subscription Services for so long as is reasonably necessary to address the potential violation. Except where DeepSource reasonably believes the violations are willful, or in urgent or emergency situations, DeepSource will notify Customer of any such suspension in advance and work with Customer in good faith to resolve the potential violation. For clarity, DeepSource reserves the right, but does not assume any obligation to Customer (except with respect to the suspension notice), to take any of the actions described in this Section 1.10.
2. Payment of Fees
2.1 Fees: Customer will pay to DeepSource all fees set forth in Order Forms (the “Fees”). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, DeepSource may increase the Fees upon renewal of each Order Form subscription term by providing written notice to Customer at least thirty (30) days prior to the commencement of the applicable renewal subscription term.
2.2 Invoices and Payments: Except as otherwise set forth in the relevant Order Form, DeepSource will invoice Customer, or, where Customer has provided valid credit card information to DeepSource, DeepSource will charge Customer, for all Fees at the beginning of the applicable billing cycle. Unless otherwise stated in the Order Form, full payment for invoiced Fees is due within 30 days after the invoice date. Customer is responsible for providing a complete and accurate billing address and billing contact to DeepSource. If Customer believes a particular invoice is incorrect, Customer must contact DeepSource in writing within thirty (30) days of such invoice date to be eligible to receive an adjustment or credit.
2.3 Late Payments: Any invoiced amount not received by DeepSource by the due date and not subject to a reasonable and good faith dispute may accrue late interest at the lower of (i) the rate of 1.5% of the outstanding balance per month, or (ii) the maximum rate permitted by law. If Customer’s account is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then DeepSource may, without limiting its other rights and remedies, following five (5) days written notice and an opportunity to cure, suspend Customer’s access to the DeepSource Service until such amounts are paid in full. Written notice may be provided via email.
2.4 Taxes: The Fees do not include taxes, duties, levies or similar government assessments of any kind, including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. Customer will not withhold any taxes from any amounts due to DeepSource. If DeepSource has a legal obligation to pay or collect any Taxes for which Customer is responsible, DeepSource will invoice Customer and Customer will pay that amount unless Customer provides DeepSource with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, DeepSource is solely responsible for taxes assessable against it based on its income, property and employees.
2.5 Software Usage Verification Records: During a Subscription Term, and for twelve (12) months after its expiry or termination, Customer will take reasonable steps to maintain complete and accurate records of its use of Software sufficient to verify compliance with the Agreement (“Verification Records”). Upon at least thirty (30) days advance notice, and no more than once per twelve (12) month period, Customer will provide DeepSource and its designee access to the Verification Records and any applicable books, systems, and accounts during Customer’s normal business hours. In the event any audit or inspection reveals that Customer has used the Software in excess of the Agreement, Customer shall promptly pay to DeepSource an amount equal to the difference between the fees actually paid and the fees that would have been paid by Customer had Customer purchased the number of licenses it is shown to have been using.
3. Term and Termination
3.1 Term: This Agreement will begin on the effective date of the first Order Form between the parties and will continue for as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).
3.2 Term of Order Forms: The initial term of each Order Form will begin on effective date of such Order Form and continue for the subscription term set forth therein. Except as set forth in such Order Form, each Order Form will automatically renew for successive renewal terms equal in length to the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.
3.3 Termination for Cause: Either party may terminate this Agreement immediately upon notice to the other party if: (a) the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (c) makes an assignment for the benefit of its creditors. Without limiting the foregoing, DeepSource may immediately terminate this Agreement if Licensee (or any Authorized User) (i) permits direct or indirect access to or use of the Subscription Services in a way that circumvents any contractual usage limit; (ii) uploads to the Subscription Services any data or other information, other than Authorized User log-in credentials, which would qualify as personal information or personally identifiable information under any applicable privacy law; (iii) uses or accesses the Subscription Services in a manner that threatens the security or functionality of the Subscription Services, including without limitation by taking any action that imposes or is likely to impose an unreasonable or disproportionately large load on the Subscription Services or DeepSource’s systems or infrastructure; or (iv) uses or accesses the Subscription Services in violation of any applicable law, the AUP, or in a manner that, in DeepSource’s sole discretion, poses a risk to the health, safety, or welfare of any person or entity.
3.4 Effect of Termination: Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Subscription Services and Documentation, and Customer will return or destroy all copies of the Software and Documentation in its possession or control. Termination or expiration will not relieve Customer of its obligation to pay all Fees that accrued prior to such expiration or termination.
3.5 Return and Deletion of Customer Data
3.5.1 Enterprise Plans: With respect to the Cloud Service, for Customers who have purchased Enterprise Plans, upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, DeepSource will make Customer Data available to Customer. After such 30-day period, DeepSource will have no obligation maintain any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
3.5.2 Non-Enterprise Plans: With respect to the Cloud Service, for Customers who have purchased non-Enterprise Plans, all Customer Data will be irreversibly deleted immediately upon termination of this Agreement, unless legally prohibited.
3.6 Survival: The sections titled “Payment of Fees,” “Effect of Termination,” “Survival,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Feedback and Usage”, “Miscellaneous” and “Definitions” will survive and termination or expiration of this Agreement.
4.1 “Confidential Information” means: (a) the information that the disclosing party (“Discloser”) designates as confidential at the time of disclosure or that should reasonably be understood to be confidential information of the Discloser; (b) with respect to Customer, Customer Data; and (c) with respect to DeepSource, the Cloud Service, Software, Documentation, pricing under the Agreement, the terms of the Agreement, business plans, security reports, performance metrics, product and service designs. The obligations of confidentiality shall not apply to information which: (i) is generally available to the public without breach of the Agreement by the receiving party (“Recipient”); (ii) is known by Recipient without confidentiality obligations; or (iii) is independently developed by Recipient without use of the Confidential Information. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this Section 4, unless a separate mutual non-disclosure agreement exists between the parties.
4.2 Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, Affiliates, and contractors who have a need to know such information in connection with the Agreement, and are under written confidentiality obligations no less restrictive than the terms set forth herein. Recipient will be liable for any breach of this Section 4 by its employees, Affiliates and contractors.
4.3 In the event of legal proceedings relating to the Confidential Information, Recipient will cooperate with Discloser and comply with applicable law (all at Discloser’s expense) with respect to handling of the Confidential Information.
4.4 Notwithstanding anything to the contrary in the Agreement, each Party may use general knowledge, skills and experience, concepts, know-how and techniques retained in the unaided memory of an individual even if acquired as a result of the Agreement.
5.1 DeepSource uses reasonable security technologies in providing the Cloud Service in accordance with commercially reasonable industry standards designed to protect the security, confidentiality and integrity of Customer Data. DeepSource is not responsible for the security or confidentiality of any Customer Data disclosed or transferred by Customer to any third party through the Cloud Service. Customer will maintain commercially reasonable and appropriate security standards and measures to protect against unauthorized access and use of its systems and devices through which its Authorized Users access and use the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from DeepSource.
6. Proprietary Rights
6.1 Customer: Except as otherwise expressly granted under the Agreement, Customer retains all ownership and intellectual property rights in and to Customer Confidential Information and Customer Data, including without limitation any improvements to Customer Data, such as code improvements generated by the DeepSource platform.
6.2 DeepSource: Except as otherwise expressly granted under this Agreement, DeepSource owns and retains all rights, titles and interests and all intellectual property rights in and to the Subscription Services, Cloud Service, Software, Documentation, and all underlying technology, and metadata and usage data collected in connection with Implementation Services or Customer’s use of the Subscription Services, and any and all any derivatives, enhancements or improvements of the foregoing developed in connection with this Agreement. Implementation Services are never undertaken or provided to Customer as works for hire as such term is defined under U.S. copyright laws. All rights not expressly granted to Customer are reserved by DeepSource.
7.1 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SUBSCRIPTION SERVICES, GENERATED CODE AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DEEPSOURCE, ITS AFFILIATES, LICENSORS, AND SUBCONTRACTORS MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT THE USE OF THE CLOUD SERVICE, SOFTWARE, AND GENERATED CODE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY PRODUCTS OR CONNECTIVITY ISSUES.
8. Mutual Indemnification
8.1 DeepSource will defend Customer against claims brought against Customer by any third party alleging that Customer’s use of the Cloud Service or Software infringes or misappropriates such third party’s copyright, trademark, trade secret, or US patent. DeepSource will indemnify Customer against all damages, attorney fees, and costs finally awarded against Customer (or the amount of any settlement DeepSource enters into) with respect to these claims. DeepSource’s obligations under this Section 9.1 will not apply to the extent any such claim results from (a) any failure to implement updates to the Cloud Service or Software made available by DeepSource, (b) Customer’s breach of Section 1 above; (c) use of the Cloud Service or Software in combination with any product or service not provided by DeepSource, (d) use of the Cloud Service or Software provided on a beta, evaluation, or trial basis, (e) anything Customer provides including configurations, instructions, or specifications, or (f) any third party open source software. In the event a claim is made or likely to be made, DeepSource may in its sole discretion (i) procure for Customer the right to continue using the affected Cloud Service or Software under the terms of the Agreement, (ii) replace or modify the affected Cloud Service or Software to be non-infringing without material decrease in functionality, or (iii) in the event these options are not reasonably available, DeepSource may terminate Customer’s subscription, and refund any pre-paid unused fees, for the affected Cloud Service or Software.
8.2 Customer will defend DeepSource, and its licensors and subcontractors, against claims brought against DeepSource by any third party related to: (a) Customer’s use of the Cloud Service or Software other than as expressly permitted in the Agreement; and (b) Customer Data or Account Data. Customer will indemnify DeepSource against all damages, attorney fees, and costs finally awarded against DeepSource (or the amount of any settlement Customer enters into) with respect to these claims.
8.3 The party against whom a third-party claim is brought: (a) will timely notify the indemnifying party in writing of any such claim; (b) will make no admissions or settlements without the indemnifying party’s prior written consent; (c) will reasonably cooperate in the defense and give the indemnifying party all information and assistance as it may reasonably require; and (d) may participate in the defense (at its own expense) through counsel reasonably acceptable to the party providing the defense. The party obligated to defend a claim will have the right to fully control the defense. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
8.4 This Section 9 states the sole, exclusive, and entire remedy with respect to covered third party claims.
9. Limitation of Liability
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EACH PARTY AND ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY CUSTOMER OR ITS AFFILIATES HEREUNDER IN THE ONE YEAR PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT LIMIT CUSTOMER’S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “PAYMENT OF FEES” SECTION ABOVE.
10. Feedback and Usage
10.1 Customer authorizes DeepSource to use feedback and ideas Customer provides to DeepSource in connection with the Agreement for any purpose (“Feedback”). Feedback shall not be considered Customer Confidential Information under the Agreement, and DeepSource shall have no obligation or liability to Customer with respect to any use or disclosure of Feedback. DeepSource may collect, use and store data concerning the usage and operation of the Subscription Services to improve its service offerings provided that such data is anonymized and does not include information that identifies or provides a reasonable basis to identify Customer or an individual. For clarity, the foregoing usage data shall not incorporate any Customer Data.
11.1 Independent Contractors: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Publicity: Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer consents to DeepSource’s use of Customer’s name and logo as part of DeepSource’s marketing efforts (including customer listings, quarterly calls with investors, reference calls, and press releases). Customer also agrees to, upon request, cooperate with DeepSource in writing a case study demonstrating how the Subscription Services are being used and benefit Customer.
11.3 Notices: DeepSource may give general notices related to the Subscription Services that are applicable to all customers by email. All other notices required to be sent hereunder will be in writing and will be effective upon (i) personal delivery, or (ii) the second business day after mailing, in each case addressed as follows: if to DeepSource at its address indicated in the Order Form to the attention of Legal Department, and, if to Customer, to Customer’s address on record in DeepSource’s account information, or to such other address or individual as the parties may specify from time to time by written notice to the other party.
11.4 Force Majeure: Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots, or embargoes, such failure or delay will not be deemed to constitute a breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
11.5 Assignment & Successors: Neither party may assign this Agreement nor any of its rights or obligations hereunder 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 (including all Order Forms), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided the successor-in-interest is not a competitor of the non-assigning party. In the event a party intends to assign this Agreement to a successor-in-interest that is a competitor of the non-assigning party, the assigning party shall provide prior written notice to the non-assigning party and the non-assigning party shall have the right to immediately terminate this Agreement without any further obligation or liability. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
11.6 Severability and Waiver: In the event that a provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid or otherwise unenforceable, such provision shall be limited or eliminated to the maximum extent permitted by applicable law so that this Agreement shall otherwise remain in full force and effect and enforceable. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
11.7 Governing Law and Venue: This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of law rules or the United Nations Convention on the International Sale of Goods, or the Uniform Computer Informational Transactions Act. The parties each consent to the personal and exclusive jurisdiction of the federal and state courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.
11.8 No Third Party Beneficiaries: The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.9 Export Control: The Subscription Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not permit Authorized Users to, access or use the Subscription Services in violation of any U.S. export law or regulation.
11.10 Entire Agreement: This Agreement sets forth the entire agreement of the parties and supersedes and replaces all prior or contemporaneous writings, negotiations and discussions, whether written or oral, with respect to its subject matter. Any written Order Form and/or this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same agreement. Delivery of an executed counterpart of a signature page to an Order Form and/or this Agreement by fax or by email of. Scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Order Form and/or Agreement.
11.11 Changes to this Agreement: DeepSource may modify this Agreement at any time by posting a revised version at this web page, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order Form specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal Subscription Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew the Subscription Term, including canceling any terms set to auto-renew. For the avoidance of doubt, any Order Form is subject to the version of the Agreement in effect at the time of the Order Form.
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 13.
12.1 “Account Data” means information about Customer that Customer provides to DeepSource in connection with the creation or administration of its DeepSource account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Subscription Term, and shall in no event include sensitive information in Account Data.
12.2 “Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity
12.3 “Agreement” means the Master Subscription Agreement and all applicable Order Forms, including any document incorporated therein, and all relevant exhibits, addenda and attachments.
12.4 “Authorized User” means any Customer employee, agent, contractor, or consultant who is granted authorization by Customer to access and use the Subscription and Implementation Services.
12.5 “Cloud Service” means any distinct DeepSource hosted software-as-a-service offering ordered by Customer on an Order Form. A Cloud Service may include a Command Line Interface.
12.6 “Command Line Interface” is a companion tool that provides certain automation and API functionality.
12.7 “Customer” means the customer that is a party to the Order Form.
12.8 “Customer Data” means any electronic data, materials, and information provided to or in connection with the Cloud Service by or on behalf of Customer and/or its Authorized Users.
12.9 “Documentation” means the then-current technical and functional documentation (such as the DeepSource Service Description Guide) that is generally available for the Subscription and Non-Subscription Services.
12.10 “Enterprise Plan” means the Enterprise level service plan described on our Pricing Page.
12.11 “Implementation Services” means the implementation services performed by DeepSource as ordered and further described on an Order Form.
12.12 “Non-Enterprise Plan” means any paid service plan that is not the Enterprise level service plan, as described on our Pricing Page.
12.13 “Order Form” means (a) an online order completed and submitted by Customer at the DeepSource site or (b) a separate order form executed by DeepSource and Customer.
12.14 “Generated Code” means the code artifact that is generated by the Cloud Service or Software.
12.15 “Software” means the object code version of any distinct DeepSource proprietary software not hosted by DeepSource ordered by Customer as set forth on an Order Form, but expressly excluding any software obtained by Customer under an open source license independent of the Agreement.
12.16 “Software Subscription Key” means a logical code that activates, enables, and controls a subscription to Software and is generated and delivered to Customer based on the type of Software set forth on the Order Form.
12.17 “Subscription Services” means the Software, Cloud Service, Support, and/or any other subscription services ordered by Customer on an Order Form.
12.18 “Subscription Term” means the term specified in the applicable Order Form, as well as all renewals, for Subscription Services.
12.19 “Support and Maintenance Services” means the technical support services ordered by Customer under the applicable Order Form for DeepSource Software and Cloud Services for any paid Subscription Services, as further described Schedule A.
12.20 “Third Party Products” means non-DeepSource products, systems, applications, components, or services provided by a party other than DeepSource.
Schedule A: Support and Maintenance Services
1.1 Support Channels:
1.1.1 E-mail Support: The Customer may report issues via the support portal (or) by e-mail in the English language to email@example.com.
1.1.2 Remote Assistance: This is available on a case-by-case basis at pre-scheduled times.
The aforementioned support channels shall be available only during the hours: 09:00 to 12:00 and 18:00 to 21:00 Pacific Time excluding government holidays as declared by any Federal/State governments.
1.2 Exclusions: The Parties agree that DeepSource shall not have an obligation to provide support for the following: (a) restoration of any data that has been lost due to the failure of Customer in maintaining backup copies, (b) the issue is due to (i) a failure on the part of the Customer, to use the Software or Cloud Service in accordance with the technical Documentation provided by DeepSource, including any minimum Software requirements; (ii) any accident or disaster affecting Customer’s network or systems; (iii) modifications or alteration made by the Customer without DeepSource’s approval and (c) Failure by Customer to install updates or improved versions of the whole or part of the Software provided by DeepSource.
1.3 Response and Resolution: All issues reported to DeepSource’s customer support will be classified and directed to the appropriate team for resolution. Issues are classified under four severity levels as shown in the below table:
The DeepSource support representative will determine the severity level based on the description provided by the Customer. Once a support ticket is created, DeepSource will acknowledge the issue and issue a tracking number to the Customer via e-mail.
1.4 Customer Responsibilities: DeepSource’s provision of support to the Customer, within the response and resolution times specified herein, is subject to the following: i) The Customer shall not permit or authorize anyone other than DeepSource to provide support in respect of the Software or Cloud Service; ii) The Customer shall provide accurate information and inputs requested by DeepSource so to diagnose and resolve the issue reported; and iii) resolution of the issue reported is within the control of DeepSource.
2. Maintenance Patches: During the Subscription Term, DeepSource may make available to the Customer, Maintenance Patches and upgrades/updates if and when made generally available by DeepSource. If a question arises as to whether an offering is an upgrade/update or a new product or separate component, DeepSource’s determination will prevail, provided that DeepSource treats the offering as a new product, update or feature for its customers generally. For the purpose of this clause, the term “Maintenance Patch” shall mean a release for the Software that includes either a software modification or addition that, when made or added to the Software, corrects any performance deficiency; or a work-around, procedure or routine that, when observed in the regular installation or operation of the Software, eliminates the practical adverse effect of such performance deficiency on Customer; or replacement of the Software, and may include patches and bug fixes.
Schedule B: Cloud Service Level Agreement
Service Availability: DeepSource warrants that for Customers who have purchased Enterprise Plans the Cloud Services will be available at least 99.5% each reporting month, excluding (a) Scheduled Downtime and (b) unavailability of the Cloud Services due to the exclusions described in Section 1.2.2 below.
1.1.1 “Actual Uptime” is calculated by subtracting from 100% the percentage of continuous 5 minute periods during the calendar month in which the Cloud Services was in a state of Downtime.
1.1.2 “Downtime” means, for a Customer, if the Cloud Services is not accessible to or functional for the Customer according to third party performance and monitoring services contracted by DeepSource at its sole discretion. Downtime is measured based on server side error rate on either the SDK or UI. Downtime does not include (a) Scheduled Downtime and (b) unavailability of the Cloud Services due to the exclusions described in 1.2.2 below.
1.1.3 “Scheduled Downtime” means those times where DeepSource conducts routine maintenance or publishes or notifies Customer of periods of Downtime with at least three (3) business days advance written notice.
1.2 Service Availability Commitment:
1.2.1 If Actual Uptime is equal to or greater than 99.5% in a given month, Customer will not be entitled to a Performance Credit. If Actual Uptime is less than 99.5% in a given month, Customer will be entitled to a Performance Credit per the below schedule:
1.2.2 The Service Availability Commitment in this Section 1.2 does not apply (a) to mere performance issues; or (b) to unavailability of the Cloud Services due to Customer’s own environment or Customer’s connected applications; (c) to unavailability of the Cloud Services caused by factors outside of DeepSource’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving DeepSource employees); or (d) to unavailability of the Cloud Services that result from equipment and/or software of third parties where such equipment and/or software is not within the reasonable control of DeepSource; or (e) to unavailability of the Cloud Services caused by abuse or misuse of the Cloud Services (or any component thereof) by Customer; or (f) to unavailability of the Cloud Services caused by use or maintenance of the Cloud Services (or any component thereof) by Customer in a manner not conforming to the requirements described in the Documentation or in the Agreement.
1.3 If Customer is eligible for Service Credits, Customer must submit a ticket via email to firstname.lastname@example.org within 30 days of the month in which the Downtime occurred. The ticket must include (i) “SLA Claim” as the subject of the ticket, (ii) the dates and times of the Downtime for which Customer is requesting credit, and (iii) any applicable supporting documentation for the claimed Downtime. If DeepSource approves the ticket, the Service Credit will be issued to Customer’s account balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.