These Meltano Subscription Terms (these “Terms”) are entered into by and between GitLab, Inc. (or one of its affiliates as specified in a GitLab issued order form or quote) (“we” or “us”) and you, and sets forth the terms under which you may access and use our software as a service offering known as Meltano and any successor services or products (the “Meltano Service”). Any other Meltano or GitLab service or software (including any service or software made available under an open source license) is governed by separate terms.
BY USING THE MELTANO SERVICE, CLICKING A BOX INDICATING ACCEPTANCE, OR EXECUTING A DOCUMENT THAT REFERENCES THESE TERMS, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST IMMEDIATELY CEASE USING THE MELTANO SERVICE. IF YOU ARE EXECUTING THESE TERMS ON BEHALF OF AN ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO DO SO. IN CONSIDERATION OF THE RIGHTS GRANTED TO YOU IN THESE TERMS, YOU MUST COMPLY WITH THESE TERMS.
These Terms were last updated on January 29, 2020. We may update these Terms from time to time and if we do, we will post the updated version on our website.
1.1 Subject to your compliance with the terms and conditions of these Terms, including your payment obligations, you and your employees and subcontractors who are accessing and using the Meltano Services on your behalf (your “Authorized Users”) may access and use the Meltano Service and any related documentation and materials supplied by us (“Meltano Documentation”). This right for you and your Authorized Users to access and use of the Meltano Service and Meltano Documentation is limited to your internal purposes and is a non-exclusive, revocable by us and may not be transferred, substituted or sublicensed by you.
1.2 As between you and us, we retain all right, title and interest in and to the Meltano Service and Meltano Documentation, including any intellectual property rights. Nothing in these Terms will be construed as conferring by implication, acquiescence, estoppel, or otherwise, any license or other right upon you.
1.3 These Terms apply to all versions of the Meltano Service, including test, alpha, beta, trial and free versions (each a “Beta Version”). However, in the event that you are using a Beta Version, notwithstanding anything to the contrary in these Terms, with respect to the Beta Version: (a) the rights granted to you with respect to the Beta Version will end on the earlier of (i) when the relevant test, alpha, beta or trial period ends, (ii) when you start using a paid-version of the Meltano Service that is not a Beta Version, (iii) the date we terminate your access to the Beta Version, which we may do so in our sole discretion; (b) we may withdraw or discontinue the Beta Version at any time; (c) any data that you enter into the Beta Version may be permanently lost if your access to the Beta Version has been discontinued; (d) we are not required to provide any services, including support, updates, patches, enhancements or fixes; and (e) GIVEN THAT THE BETA VERSION IS IN DEVELOPMENT ONLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN LIEU OF THE AGGREGATE LIABILITY AMOUNT SET FORTH IN SECTION 8 OF THESE TERMS, IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU, FROM ANY CAUSES OF ACTION OR UNDER ANY THEORIES OF LIABILITY, IN CONNECTION WITH THE BETA VERSION, EXCEED $0. Any additional terms that appear on a webpage for the Beta Version are incorporated into these Terms by reference.
2.1 You will maintain and ensure that all Authorized Users maintain the security and confidentiality of usernames, passwords and account information related to your access to the Meltano Service. You are responsible for all activities that occur under your and your Authorized Users’ usernames, passwords or accounts and you will notify us immediately of any unauthorized use of your account.
2.2 Except as expressly authorized in Section 1.1, you will not, will not attempt to, and will not permit any third party to:
(a) access or use the Meltano Service or Meltano Documentation in any other manner;
(b) access or use the Meltano Service or Meltano Documentation for the purposes of benchmarking or competitive analysis of the Meltano Service, or developing, using, providing, or supporting products or services competitive to us;
(c) copy the Meltano Service or Meltano Documentation, or transfer, sell, rent, lease, lend, distribute, resell, sublicense, market, assign, publish, download, disclose or otherwise make available any part of the Meltano Service or Meltano Documentation, to any third party;
(d) circumvent, interfere with or endanger the operation or security of the Meltano Service, including any measures designed to monitor or prevent use of the Meltano Service in contravention of these Terms;
(e) conduct penetration tests of the Meltano Service;
(f) use the Meltano Service to provide services to third parties (such as for timesharing services, service bureau purposes, as part of an application services provider or as a service offering primarily designed to offer the functionality of the Meltano Service, or for any purpose other than your own internal use);
(g) alter, modify, adapt, translate, enhance, reverse engineer, disassemble, decompile or prepare any derivative work from or of the Meltano Service or Meltano Documentation, or otherwise derive or determine or attempt to derive or determine the source code or other proprietary information or trade secrets from the Meltano Service or Meltano Documentation;
(h) remove, obscure or otherwise alter any of our proprietary legends, copyright notices, trademark or service mark attributions or warranties or disclaimers, from or in the Meltano Service or Meltano Documentation;
(i) access or use the Meltano Service or Meltano Documentation in any manner that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of anyone, or that violates any law;
(j) access or use the Meltano Service or Meltano Documentation in connection with any high risk or strict liability activity;
(k) access or use the Meltano Service or Meltano Documentation or software other than in accordance with these Terms and in compliance with all applicable laws (including any privacy laws, and laws and regulations concerning consumer and child protection, obscenity or defamation); or
(l) access or use the Meltano Service or Meltano Documentation in any manner that: (i) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any User authentication or security process); (ii) impersonates any person or entity, including any of our employees or representatives; or (iii) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
3.1 You will retain all right, title and interest in and to any information, content or data transmitted, submitted, provided or made available by or on behalf of you or your Authorized Users via or in connection with the use of the Meltano Service (“Customer Content”).
3.2 You hereby grant and agree to grant to us a non-exclusive, royalty-free, worldwide license to use, display, host, copy, process and transmit all Customer Content to provide the Meltano Service to you. You represent and warrant that you have and will ensure that you will continue to have, the right to provide the foregoing license and that neither the Customer Content itself nor its use by us will violate any applicable law or infringe, misappropriate or otherwise violate any rights of others.
3.3 You will ensure that no Customer Content includes any data, which individually or in combination with other data, names or identifies, a natural person (“Personal Data”). Personal Data includes: (a) data that is defined as a regulated category of data under any applicable privacy or data security laws; (b) non-public personal data, such as national identification number, passport number, social security number, or driver’s license number; (c) health or medical information, such as insurance information, medical prognosis, diagnosis information or genetic information; (d) financial information, such as a policy number, credit card number and/or bank account number; and (e) sensitive personal data, such as a person’s mother’s maiden name, race, religion, marital status, disability, or sexuality.
3.6 Upon our request, you will defend, indemnify, and hold us harmless from and against all claims, proceedings, liabilities, damages, settlements, attorneys’ fees and other costs and expenses arising from any Customer Content, our use of any Customer Content in accordance with these Terms and any breach of this Section 3 or Section 4 by you.
3.7 We may use any data, feedback or information that you make available to us or that we derive or generate from your use of the Meltano Service, including the Beta Version (“Meltano Feedback”), and you hereby grant us a royalty-free, fully paid-up, non-exclusive, transferable, sublicensable, perpetual, irrevocable license to use, copy, modify, make derivative works of, distribute, perform and display such Feedback for any purpose, including to improve and develop the our products and services and those of our affiliates.
4.1 The Meltano Service may interoperate with third party applications (“Third Party Applications”). These Third Party Applications are not part of the Meltano Service. We cannot guarantee the continued availability of any interoperability with any third party applications, and may cease providing such interoperability without liability to you.
4.2 You will: (a) ensure that you have all rights, permissions and licenses to use any Third Party Application, to transfer any Customer Content between the Meltano Service and such Third Party Application and to enable us to transfer Customer Content between Meltano and such Third Party Application; and (b) comply with all third party terms applicable to any Third Party Application. You are solely responsible for all of the foregoing and configuring the Meltano Service to enable interoperation with a Third Party Application and you.
4.3 We are not responsible for anything that happens to your Customer Content that results from the Third Party Application’s interaction with Customer Content.
5.1 We may charge you fees to access and use the Meltano Service. These fees will be set forth on the Meltano website or a written quote or separate written document agreed by the parties. You will pay the applicable fees, without any right of set-off or deduction.
5.2 If not otherwise specified in the relevant quote, written document or Meltano website, (a) we will invoice you on an up-front basis and (b) payments will be due within thirty (30) days of your receipt of invoice. All fees paid or payable under these Terms, including any prepaid amounts, are non-refundable, including if these Terms are terminated in accordance with Section 6 below.
5.3 Fees under these Terms are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. You will pay such taxes (excluding US taxes based on our net income) unless you have provided us with a valid exemption certificate. In the event of any withholding requirements, you will pay any required withholding yourself and will not reduce the amount paid to us on account thereof.
6.1 These Terms will continue until all your subscriptions to the Meltano Service have expired or have been terminated. The term of your Meltano Service subscriptions will be specified on the Meltano website when you purchase the subscriptions or in another written document agreed by the parties. Unless otherwise agreed by the parties in writing: (a) subscriptions automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other written notice (which may be by email) at least 30 days before the end of the relevant term; and (b) renewal of subscriptions will be at our applicable standard fees at the time of renewal.
6.2 We may terminate these Terms: (a) upon at least 30 days’ written notice to you if you breach any of these Terms; or (b) you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3 You may terminate these Terms at any time upon at least 30 days’ written notice to us for any reason, provided that any amounts you have already paid are non-refundable and any unpaid fees covering the remainder of the relevant subscription term will be immediately due and payable to us upon your termination, to the extent permitted under applicable law.
6.4 Termination of these Terms will not relieve you of your obligations to pay any fees payable to us for the period prior to the effective date of termination. Upon expiration or termination of these Terms, all your rights to access or use the Meltano Service or Meltano Documentation will immediately cease, but sections 1.2, 3.1, 3.6, 3.7, 6, 7, 8 and 9 will survive.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) USE OF ANY MELTANO SERVICE OR MELTANO DOCUMENTATION IS AT YOUR SOLE RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS BORNE BY YOU; (B) THE MELTANO SERVICE AND MELTANO DOCUMENTATION ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AVAILABILITY AND NON-INFRINGEMENT; (C) WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE MELTANO SERVICE OR MELTANO DOCUMENTATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE MELTANO SERVICE OR MELTANO DOCUMENTATION WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE, OR THAT DEFECTS WILL BE CORRECTED; AND (D) WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THE MELTANO SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE MELTANO SERVICE THAT ARISE FROM CUSTOMER CONTENT. NO INFORMATION OR ADVICE GIVEN BY US WILL CREATE ANY WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR BUSINESS INTERRUPTION; AND (B) IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ALL LOSSES, CLAIMS AND DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY. All limitations and exclusions of liability in this agreement will apply even if the above stated remedies fail of their essential purpose and regardless of the form or source of claim or loss, whether the claim or loss was foreseeable, and whether we have been advised of the possibility of the claim or loss.
9.1 If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision of these Terms will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. All waivers must be in writing and signed by both parties.
9.2 You may not assign these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempt to assign these Terms without such consent will be null and of no effect. Subject to the foregoing, these Terms will bind and inure to the benefit of each party's successors and permitted assigns. We may assign these Terms, in whole or in part, by operation of law or otherwise, without your prior written consent.
9.3 These Terms constitute the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements, communications, and other understandings regarding the subject matter hereof. All waivers and modifications must be in writing signed or otherwise agreed to by each party, except as otherwise provided under these Terms.
9.4 No agency, partnership, joint venture, or employment is created as a result of these Terms, and neither party has any authority of any kind to bind the other in any respect whatsoever. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
9.5 All notices permitted or required under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
9.6 We will not be liable for any loss resulting from a cause beyond our reasonable control.
9.7 These Terms will be governed by the laws of the State of California, U.S.A. without regard to its conflict of law provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of these Terms.
9.8 You have not relied on the availability of any future version of the Meltano Service or any future product in making your decision to enter into these Terms.
9.9 You will not, and will not permit anyone to, access or use the Meltano Service in a U.S.-embargoed country or region or in violation of any export law or regulation.