Terms of Service
Last Updated: May 10, 2021
These Terms of Service ("Terms") govern your installation/purchase and use of the Papio Pipelines cloud-hosted Jenkins integration builds for GitHub ("Pipelines," or the "Service") provided by PCS Solutions, LLC. d/b/a Papio Cloud Software ("we," "us," "Papio", or "PCS"). This is a tool that allows you to run CI/CD workflows in a fully managed Jenkins instance, pre-configured for GitHub. We provide Papio on a paid subscription basis (each, a "Subscription") to our users ("you," or "User") in accordance with these Terms and our Privacy Policy, found here. We reserve the right to change these Terms or the Privacy Policy without notice. Your continued use of the Service will constitute your consent to such changes. THESE TERMS CONTAIN A WAIVER OF YOUR RIGHTS TO A JURY. PLEASE REVIEW THEM CAREFULLY BEFORE USING THE SERVICE.
Details of your Subscription, including its length ("Term") and your pricing (the "Fees") can be found via your GitHub Marketplace account ("GHM Account"). All pre-paid purchases of Pipelines are non-refundable in accordance with GitHub's Marketplace Billing Policy, and each Subscription will automatically renew at the end of the Term at the Fees stated in your GHM Account, unless earlier cancelled, pursuant to the GitHub Marketplace Terms of Service. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We are not liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
The PCS Solutions and Papio Cloud Software names and logos are the trademarks of PCS Solutions, LLC. You may not use such name or logos without written permission from us. The Service and all supporting code and content of the service is copyrighted and the property of PCS. Except as permitted by these terms, or by written permission from us, you may not use the content of this website, the Service.
1 Grant of License
Subject to these Terms, during the Subscription Term, we grant you a non-transferable, non-sublicensable, non-exclusive, limited license to access and execute the Service for your own personal use, but only in accordance with (i) any technical documentation as provided by PCS ("Documentation"), (ii) these Terms, and (iii) any restrictions set forth in your GHM Account. You acknowledge and agree that, as between PCS and a User, PCS owns all right, title, and interest, including all intellectual property rights, in and to the Service and Documentation, and PCS shall, with no exception, remain the sole and exclusive owner of the Service and Documentation. Unless otherwise expressly provided in these Terms, you do not acquire any proprietary right, title or interest in or to any intellectual property rights in Papio or the Documentation by virtue of your agreement with these Terms. This license is individual, and you are not permitted to access Papio or use the Service on behalf of any third party. By using the Service, you represent and warrant to us that you have all necessary authority and permission to share with us the User Code and all other information you may provide to us. All rights not expressly granted by PCS herein are reserved for us.
2 Warranty Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND OUR TECHNICAL SUPPORT ARE PROVIDED "AS IS." PCS DOES NOT WARRANT THAT THE SERVICE OR SUPPORT PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT PAPIO WILL MEET YOUR REQUIREMENTS. PCS DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
3 License Restrictions
User shall not, on its own or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Service or the Documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Service, in whole or in part, nor will you use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Service or encourage others to do so; (c) allow access to or permit use of the Service by any users other than Users, or any use which violates the technical restrictions of the Service, any additional licensing terms provided by PCS via the Documentation, or these Terms; (d) use the Service to develop, test, host or run and operate applications on behalf of third-parties; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (f) use the Service to provide third-party training; (g) modify or create derivative works based upon the Service; or (h) engage in any behavior intended to disrupt the Service's ordinary operations, including by overloading, flooding, or spamming the Service, or (i) circumventing any rate limits in place on the Service.
You agree not to use or permit use of the Service to display, store, process or transmit any data that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any content that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute bulk e-mail, "junk mail," "spam" or chain letters; (v) constitute an infringement of any third party's or PCS' intellectual property rights or other proprietary rights; or (vi) otherwise violate applicable laws, ordinances or regulations. In the event that we suspect any breach of the restrictions set forth in this Section 3, including without limitation by Users, we reserve the right to suspend access to the Service without advance notice, in addition to any other remedies we may have at law or equity.
4 Your Data
You retain your ownership of any content you submit to Papio ("User Code"). However, by submitting User Code to the Service, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content as necessary to provide you the services. You acknowledge and agree that User Code may be temporarily located in public cloud infrastructure located within the United States. You also agree that you will not provide to the Service or to PCS more generally any sensitive information that could be used to personally identify you. We will not be responsible for any security breach that results in the disclosure of any sensitive personal information relating to you or others that was supplied to us contrary to this section.
You agree that we may identify you as a User of the Service, including by identifying you by name and using your name or logo on any of our websites, client lists, press releases, or other marketing materials. You may revoke this permission at any time.
5 Confidentiality
5.1 Use of Confidential Information
Unless otherwise agreed to in writing by the party that furnished the Confidential Information ("Disclosing Party"), the party receiving the Confidential Information ("Receiving Party") agrees (a) to keep all Confidential Information in strict confidence and not to disclose or reveal any Confidential Information to any person who (i) is not under an obligation to maintain the confidentiality of such Confidential Information at least as securely as you are, and (ii) doesn't have a need to know; and (b) not to use Confidential Information for any purpose other than in connection with fulfilling obligations or exercising rights pursuant to these Terms. The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, as it affords its own Confidential Information.
5.2 Exceptions
These obligations of the parties set forth herein shall not apply to any information that: was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; was known to the Receiving Party free of any obligation of confidentiality before or after the time it was communicated to the Receiving Party by the Disclosing Party; is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; is disclosed with the prior written approval of the Disclosing Party; or is disclosed pursuant to an order or requirement of a court, administrative agency or other governmental body. In the event of a necessary disclosure at the request of law enforcement or another government action, the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party the possibility to seek a protective order or otherwise prevent or restrict such disclosure, and shall use reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party's expense) to obtain such protective order or other appropriate remedy. These terms and obligations pertaining to confidentiality shall survive and remain in full force and effect for a period of three (3) years from the termination or expiration of your Subscription, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by these Terms before such period has elapsed. To the extent the Confidential Information constitutes a "trade secret," such Confidential Information shall be subject to the obligations herein indefinitely, until such time as the information no longer constitutes a "trade secret."
5.3 Definition of Confidential Information
"Confidential Information" means any and all non-public, confidential and proprietary information, furnished by the Disclosing Party to the Receiving Party, that is marked in writing (including e-mail), or in other tangible form, as "confidential" or "proprietary," or that would be reasonably understood to be confidential. Confidential Information may include, without limitation, such marked disclosures that relate to patents, patent applications, trade secrets, research, product plans, products, developments, know-how, ideas, inventions, processes, design details, drawings, sketches, models, engineering, software (including source and object code), algorithms, business plans, sales and marketing plans. Notwithstanding the foregoing, Confidential Information shall expressly include the Service, User Code, the Documentation, and all know-how, techniques, ideas, principles and concepts which underlie any element of the Service or the Documentation and which may be apparent by use, testing or examination.
6 Indemnification
To the extent permitted by applicable law, User will indemnify, hold harmless and defend PCS and its affiliates and wholly owned subsidiaries, at User's expense, from any and all third-party claims, actions, proceedings, and suits brought against PCS or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by PCS or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your use of the Service in violation of the terms of these Terms or (ii) Your violations of applicable laws, rules or regulations. We will notify you of any claim, suit or action for which you are required to indemnify us and we will cooperate as reasonably required in the defense of any claim. PCS reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by User, and User shall remain responsible for all reasonable costs and attorney's fees arising from such assumption.
7 Liability
7.1 Liability Limitations
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. PCS' TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY PCS IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY USER TO PCS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE CAUSE OF ACTION. The provisions of this Section allocate risks between User and PCS. PCS' Fees for the Subscriptions reflect this allocation of risks and limitation of liability.
7.2 Statue of Limitations; Jury Waiver
NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE SUBSCRIPTIONS OR SUPPORT PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. BOTH PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8 Termination
Either party may terminate all licenses granted hereunder at any time by cancelling the Subscription in your GHM Account. If you cancel the Subscription, or if we cancel your Subscription due to your breach of any of these Terms, all prepaid Fees are nonrefundable. Upon expiration or termination of a Subscription Term, you shall immediately cease use of the Service and Documentation. Except as set out above, in no event will termination relieve you of the obligation to pay any Fees due to PCS pursuant to these Terms.
9 General Contract Terms
No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a 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 User will supersede these Terms, and any such document relating to the Service shall be for administrative purposes only and shall have no legal effect. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements and communications relating to the Service. Neither party shall be liable to the other for any delay or failure to perform any obligation pursuant to these Terms (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, epidemic, pandemic, 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. These Terms shall be governed by the laws of the State of Nebraska 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).