END-USER LICENSE AGREEMENT FOR Azure DevOps Extensions: Portfolio++™ and Portfolio++ Pro™
1. Last Updated
The terms of this agreement were last updated on September 9, 2021.
2. Effective Date
This agreement is effective between Licensor and Licensee on the date Licensee first obtains and/or uses the Software.
3. Grant of License – Portfolio++™
The Software is licensed, not sold. Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the right to use the Software subject to the terms of this agreement. The license granted may be a Paid License or a Free License, the rights provided for which are explained below.
3.1 Paid License
The Paid License allows Licensee to enable and use the Software on a single instance (also called ‘VSTS account’ or ‘Azure DevOps organization’). The Paid License is provided for a number of Authorized Users and for a duration as described in separate Subscription Terms provided to the Licensee upon initiation of a Paid License. The Paid License is valid only for the temporal period of the subscription and expire after the ending of the subscription. The temporal period of the subscription may auto-renew, according to the payment terms agreed to by the Licensee. Upon termination of a Paid License, access to the Software may be provided to the Licensee under the Free License or may be ended, subject to the discretion of the Licensor
3.2 Free License
The Free License is subject to the same terms as the Paid License but does not require payment by Licensee. The functionality of the Software licensed under the Free License is limited compared to the functionality of the Software licensed under the Paid License. The functionality limited in the Software under the Free License is determined at the discretion of the Licensor.
4. General License Terms
4.1 Scope
Each license granted by Licensor is worldwide, nonexclusive and non-transferable, unless otherwise specified in writing.
Licensee agrees not to (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software; (b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form any part of or the whole of the Software or any data/information not owned by the Licensee; (c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and (d) fail to comply with all applicable laws regarding use of the Software.
4.2 Duration
Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, the term granted hereunder shall be for a duration described in the Subscription Terms provided to Licensee upon entering into this Agreement. In the absence of Subscription Terms in the case of a Free License, the term granted hereunder shall be the duration for which Licensee's Microsoft credentials for the Azure DevOps Organization Owner are valid.
4.3 Protection Mechanisms
The Software may include license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third-party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of the License.
4.4 Permitted Computers
Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and/or make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
4.5 Responsibility for Non-Controlled Systems
If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this Agreement are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.
5. Third-Party Platforms
5.1 Licensee acknowledges that the Software may be designed to operate within an environment provided by one or more third-party platforms, including but not limited to Microsoft Azure DevOps. Licensor does not guarantee that Licensee will have access to any third-party platforms required for interaction with the Software, and Licensee acknowledges that it is the sole responsibility of Licensee to maintain access to such third-party platforms.
5.2 Licensee acknowledges that the obligations of Licensee under this Agreement are not conditioned on Licensee's continued ability to access any third-party platform through which the Software is accessed.
5.3 Licensee agrees not to attempt to use the Software to attempt to circumnavigate any permissions settings, security features, or privacy features of any third-party platforms.
5.4 The Software does not include any additional permission-granting functionality, but instead relies on the permission models provided by the third-party platforms. Licensee acknowledges that in order to view summary information within the Software, a user must be given permission to view the related information within the third-party platform, and will have access to the related information within the third-party platform as well as within the Software.
6. Right to Modify Terms
Licensor reserves the right to modify the terms of this agreement at any time. If Licensor chooses to modify the terms of this agreement, the modified terms will be posted at Microsoft Visual Studio Marketplace – Extensions for Azure DevOps, Portfolio++™ landing page. Continued use of the Software after the posting of modified terms constitutes agreement by the Licensee to the modified terms. Licensee is free to reject the modified terms, at which point Licensee agrees to immediately cease use of the Software and terminate the Agreement as noted in Paragraph 8.3.
7. Fees
There are no fees associated with the use of the Free License functionality of the Software. For the Paid License functionality of the Software, the Licensee must pay all Fees by the due date and in the manner directed in the Subscription Terms. Failure to pay Fees by the due date will result in the immediate termination of the Paid License.
8. Maintenance
8.1 Supplemental Software and Services
This Agreement applies to updates, supplements, add-on components, or Internet-based services components of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software. Licensor may choose to provide additional terms with any such supplemental software.
8.2 Support Services
Neither the Paid License nor the Free License obligates Licensor to provide support services for the Software. Licensor may choose to offer support services at its own discretion, and such services may be subject to the payment of additional Fees.
9. Breach by Licensee
If the Licensee discovers that it has breached any of its obligations under this Agreement, then the Licensee must immediately report such breach to Licensor, in writing. Where a breach involves the distribution or use of Software outside of the terms of the Paid License or in excess of a usage amount outlined in the Subscription Terms, Licensor is entitled (without prejudice to any other right or claim that Licensor may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this Agreement or the Subscription Terms, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor charges for the Software.
10. Term and Termination.
10.1 Term. This Agreement is effective until terminated by a party, as described below.
10.2 Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Paid Licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. Licensor will not provide refunds or credits for any partial subscription period(s) if the Agreement is terminated without cause.
10.3 Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement immediately on notice if (i) the other party materially breaches the Agreement, and fails to cure the breach within 30 days after receipt of notice of the breach; (ii) the other party becomes Insolvent; or (iii) Licensor modifies the terms of the Agreement in a fashion that is unacceptable to Licensee. Upon such termination, all licenses granted under this Agreement will terminate immediately.
10.4 Suspension. Licensor may suspend use of or access to some or all functionality of the Software without terminating this Agreement during any period of material breach on the part of Licensee.
11. Defense of Third-Party Claims
11.1 By Licensee. Licensee will indemnify, defend, and hold harmless Licensor and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to Licensee’s or any Authorized User’s violation of this Agreement (“Claims Against Licensor”), and will indemnify, defend, and hold harmless Licensor and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Licensor or its Affiliates in connection with or as a result of, and for amounts paid by Licensor or its Affiliates under a settlement Licensee approves of in connection with a Claim Against Licensor. Licensor must provide Licensee with prompt written notice of any Claims Against Licensor under this clause and allow Licensee the right to assume the exclusive defense and control of the claim, and cooperate with any reasonable requests assisting Licensee’s defense and settlement of such matter.
11.2 By Licensor. Licensor will indemnify Licensee from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Software as permitted under the Agreement infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify Licensee for reasonable attorney’s fees incurred and damages and other costs finally awarded against Licensee in connection with or as a result of, and for amounts paid by Licensee under a settlement Licensor approves of in connection with a Claim Against Licensee; provided, however, that the Licensor has no liability if a Claim Against Licensee arises from: (1) Non-Licensor products, including third-party software; or (2) any modification, combination or development of the Software that is not performed or authorized in writing by Licensor, including in the use of any application programming interface (API). Licensee must provide Licensor with prompt written notice of any Claim Against Licensee and allow Licensor the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Licensor’s defense and settlement of such matter. This section states Licensor's sole liability with respect to, and Licensee’s exclusive remedy against Licensor for, any Claim Against Customer.
11.3 Notwithstanding anything contained in the above subsections 8.1 and 8.2, (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
12. Limitation of liability.
Each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Licensee was required to pay for the Software during the term of the applicable licenses, subject to the following:
12.1 Subscriptions
For Paid Licenses ordered on a subscription basis, Licensor’s maximum liability to Licensee for any incident giving rise to a claim will not exceed the amount Licensee paid under the Subscription Terms during the 12 months before the incident.
12.2 Free License
For Software accessed under the Free License without separate payment to Licensor, Licensor’s liability is limited to direct damages finally awarded up to US$1,000.
12.3 Exclusions
In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
12.4 Exceptions
No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.
13. Limited Warranty
13.1 DISCLAIMER OF WARRANTIES
To the maximum extent permitted by applicable law, Licensor and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in this Agreement hereby disclaim all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, or reliability. Additionally, Licensee acknowledges that Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement.
13.2 NON-EXCLUDABLE REMEDIES
The Licensee may have remedies against Licensor imposed by law or statute that cannot be excluded by Licensor and its third party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability are limited at Licensor’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance; 1) resupply of the Maintenance; or 2) the cost of having the Maintenance supplied again.
14. Improving Licensor’s Products
Licensor is always striving to improve its products. In order to do so, Licensor may collect information about its users and to measure, analyze, and aggregate how its users interact with its products, such as usage patterns and characteristics of our user base. When it does so, Licensor collects such information and uses the information as per its Privacy Policy. By using the Software, Licensee acknowledges that they have reviewed and agreed to Licensor’s Privacy Policy.
15. Assignment
Licensor may assign its rights and obligation under this Agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
16. Intellectual Property
16.1 Ownership and Reservation of Rights
Licensor retains all rights, title and interest in and to the Software, as well as all intellectual property rights (such as copyright, patent and trademark) in and to the Software not expressly granted to you in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.
16.1 Licensee Shall Not Remove Markings
Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.
17. Export Restrictions
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorization. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
18. Governing Law and Exclusions
This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the State of Washington. Licensee's use of the Software constitutes agreement that any such disputes shall be brought in the federal courts of the Western District of Washington, if possible, and in the King County courts otherwise.
19. Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.
20. Waiver
20.1 If Licensor fails, at any time during the term of this Agreement, to insist upon strict performance of any of the Licensee’s obligations under this Agreement, or if Licensor fails to exercise any of the rights or remedies to which it is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
20.2 A waiver by Licensor of any default shall not constitute a waiver of any subsequent default.
20.3 No waiver by Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.
21. No Partnership
Nothing in this Agreement is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
22. Entire Agreement
22.1 This Agreement (including the Subscription Terms provided to Licensee upon entering this agreement or upon converting from a Free License to a Paid License) is the entire agreement between the Licensee and Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement.
22.2 Each party acknowledges that, in entering into this Agreement (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.
22.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this Agreement.
23. Reading
In this Agreement, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a party includes its personal representatives, successors or permitted assigns; (c) the headings in this Agreement are inserted for convenience only and shall not affect its construction; (d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or reenactment and includes any subordinate legislation for the time being in force made under it; (e) a reference to one gender includes a reference to any other gender; (f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (g) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
24. Severability
24.1 If any provision of the Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
24.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.
25. Notices
All notices to Licensor will be sent to:
iTrellis LLC
PO Box 126
Mountlake Terrace, WA 98043
All notices to Licensee will be sent to the physical address or the email address provided by Licensee upon entering into the Agreement.
Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an electronic communication, that such communication was sent to the specified address of the addressee.
26. Survival
Clauses 6, 7, 8, 10, 13, 15, 16, 19, 20, 21, and 22 shall survive any termination of this Agreement.
27. Terms and Definitions
“Authorized User” means a natural person who accesses and uses the Software.
“Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Paid License and as applicable any Maintenance.
“Licensee” means the person, company or organization that has licensed the Software by means of a Paid License or a Free License.
“Licensor” means iTrellis LLC, the producer and vendor of the Software
“Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
“Parties” means either Licensor or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this Agreement.
“Purchase” means acquisition of the Software by a Licensee.
“Software” means the Licensor’s “Portfolio++™” branded software, which may include computer software, Accessible Code and Protected Code, associated media, Media, printed materials, electronic documentation, and Internet-based services.