Octopus Deploy End User Licence Agreement
This end user licence agreement (Agreement) is a legal agreement between you and Octopus Deploy
Pty Ltd ACN 160 339 186 (Octopus Deploy, our, we or us) for the Octopus Deploy software application
(Software). By using all or any portion of the Software, you agree to be bound by the terms of this
Agreement. If you are entering into this Agreement on behalf of a company, then a reference to you in
this Agreement is a reference to the company and you acknowledge and agree that you may enter into
this agreement on behalf of the company and the company will be bound by this Agreement.
If you do not agree to the terms of this Agreement, you must immediately uninstall and cease using the
Software.
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Grant and scope of Licence
1.1
On your payment of the required licence fee and acceptance of this agreement, we grant you a
worldwide, non-exclusive, non-transferable license to use the Software (Licence) for your own
internal business purposes on the terms of this Agreement. You have no rights in, or to, the
Software other than the rights granted under this Agreement.
1.2
The Software may incorporate material which has been created by third parties from time to
time including material licensed to us under an open licence. To the extent applicable, we shall
identify such material and where the licence for such material grants you rights which are not
compatible with this Agreement (including the right to modify and distribute such material under
an open licence), the terms of that license shall apply and prevail over this Agreement with
respect to such material and you agree to comply with that licence with respect to that material.
Subject to your compliance with the terms of this Agreement, such licences will not impose any
further obligations on you.
2
Use of the Software
2.1
Your ability to use the Software may be limited in accordance with the category of licence you
have selected and purchased. These limitations will be detailed on our website at the time of
purchase.
2.2
Unless otherwise specified on our website, you may install and use up to three separate Octopus
Servers (Installations). Installations are counted whether on the same physical or virtual
server, or on different servers.
2.3
You will have access, free of charge, to all updates, upgrades and patches for the Software that
we release for twelve (12) months after the date of purchase. However, we are under no
obligation to release any update, upgrade or patch at any time. This period may be extended for
additional periods of twelve (12) months upon payment of a renewal fee before expiry of the
then-current period.
3
Source code access and use
3.1
If you have purchased a licence granting you access to the source code of the Software, we
grant you a worldwide, non-exclusive, non-transferrable, irrevocable license to use the source
code for your own internal business purposes on the terms of this agreement.
3.2
You may view and modify the source code for the sole purposes of education, trouble-shooting,
and customizing features for your own particular needs.
3.3
If you modify the source code:
3.4
(a)
you own the intellectual property rights in any changes to the source code that you
make;
(b)
you may compile and distribute the resulting executable application for your own
internal business purposes.
You acknowledge that the source code contains valuable property of the Licensor, and you agree
to take reasonable measures to help ensure its confidentiality.
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3.5
You agree that we are not obliged to provide any technical support or error corrections in relation
to any issues or problems arising out of any modifications of the source code.
4
Payment
All fees or charges for the License pursuant to this agreement are payable in accordance with
the payment requirements stipulated on our website as amended from time to time.
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Restrictions
5.1
Except as otherwise provided for in clause 3, you may not:
5.2
(a)
distribute or disclose the source code, or any portion or modifications or derivative
works thereof, to any third party;
(b)
use the Software or its source code in any way that could damage our reputation;
(c)
rent, lease, sub-licence, loan, translate, merge, adapt, vary or modify the Software or
its source code;
(d)
combine or incorporate the source code, in whole or part, into any other software or
product.
You must:
(a)
keep all copies of the source code secure;
(b)
supervise and control use of the Software and its source code and ensure that your
employees and representatives use the Software and its source code in accordance with
the terms of this Agreement; and
(c)
include our copyright notice on all entire and partial copies of the Software or the source
code on any medium.
6
Termination of Agreement
6.1
Either party may terminate this Agreement on ninety (90) days’ notice in writing.
6.2
On termination of this Agreement, you must immediately cease use of, and destroy, all copies
of the Software.
7
Warranty
7.1
Any condition, warranty, representation or other term concerning the supply of the Software
which might otherwise be implied into or incorporated in this Agreement, whether by statute,
common law or otherwise, is excluded to the fullest extent permitted by law. However, nothing
in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty
or other term or condition implied or imposed by legislation (including the Competition and
Consumer Act 2010 (Cth)) which cannot be lawfully excluded or limited. This clause 6 applies to
the extent permitted under such legislation.
7.2
We expressly disclaim all warranties or guarantees of any kind with respect to the Software,
whether express, implied, statutory or arising out of the course of performance, course of dealing
or usage of trade including any warranties of merchantability, fitness for a particular purpose,
satisfactory quality, accuracy, title of non-infringement. Where such warranty is implied or
imposed by law despite this clause 7.2, your remedy is limited to, at our sole discretion, repair
or replacement of the Software or refund of the amount you paid for the Software.
7.3
We do not warrant that the Software is error free, will operate in an uninterrupted manner, will
not damage or interfere with your computer operating system and will not damage or interfere
with your business or the business of third parties.
7.4
We warrant that:
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(a)
we own the intellectual property rights in the Software and/or have the rights to grant
a license to you;
(b)
in creating the Software, we have not knowingly infringed on the intellectual property
rights of any third party.
7.5
We warrant that for two (2) years after the date of purchase (Warranty Period), the Software
will, when properly used, perform substantially as described (provided that the Software is
properly used on the computer and with the operating system for which it was designed).
7.6
If, within the Warranty Period, the Software fails to perform as described due to a defect or fault
(that is not the result of you having amended the Software or used it in contravention of the
terms of this Agreement or outside its ordinary operating requirements from time to time), we
will, at our sole option, repair or replace the Software, provided that you:
7.7
(a)
notify us in writing of the defect or fault in the Software within the Warranty Period;
and
(b)
make available all the information that may be necessary to assist us in resolving the
defect or fault, including sufficient information to enable us to recreate the defect or
fault.
The warranty set out at clause 7.5 does not apply to:
(a)
beta or pre-release versions of the Software; or
(b)
free or community versions of the Software.
Such Software is supplied on an as-is basis and without warranties of any kind save for those
required by applicable law.
8
Licensor's liability
8.1
We are not liable (whether in contract or tort or otherwise) for:
(a)
any computer virus or bug that infects your computer operating systems;
(b)
anything you may do to a third party as a result of using the Software;
(c)
any consequential loss or damage however arising out of your use of the Software
including:
(i)
any loss of profits, business, contracts, anticipated savings, goodwill, or
revenue;
(ii)
any loss, or corruption, of software or data;
(iii)
any loss or use of hardware, software or data; or
(iv)
any indirect, special or consequential loss or damage whatsoever,
even if we have been advised in advance of the possibility of such loss or damage.
8.2
You acknowledge and agree that:
(a)
the Software has not been developed to meet your individual requirements;
(b)
it is your responsibility to ensure that the facilities and functions of the Software meets
your requirements;
(c)
the existence of any minor errors shall not constitute a breach of this Agreement; and
(d)
the provisions of clauses 6, 8 and 9 are reasonable and reflected in the price which
would be higher without those provisions and you accept such risk.
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8.3
Our liability for any act or omission is proportional to the extent that each party contributed to
the act or omission.
8.4
Except to the extent that any law or regulation provides otherwise, our maximum aggregate
liability under or in connection with this Agreement whether in contract, tort (including
negligence), or otherwise is limited to the purchase price you paid for the Software and any
renewal fees.
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Third party claims
9.1
Except as in clause 9.2, if a third party claims that the Software has caused it loss or damage
whether in contract, tort (including negligence), breach of statutory duty, restitution or
otherwise, as a result of your use of the Software then, without prejudice to our overall liability
to such third party, you shall indemnify us from any such loss or damage.
9.2
If any claim is brought against you alleging that your use of the intellectual property associated
with the Software infringes the rights of any third party:
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(a)
you shall promptly notify us and supply full details of the claim;
(b)
the two of us shall consult together on an appropriate course of action and shall seek
to minimise the effect of any claim on each other's businesses;
(c)
we shall have the right, but not the obligation, to take control of all negotiations and
litigation arising out of the claim;
(d)
subject to clause 8.4, we will pay any damages and costs awarded against you in
connection with any claim;
(e)
we shall have the right, at our sole choice, either:
(i)
to negotiate terms for continued use by you of the claimed infringing software;
(ii)
amend the Software to make it non-infringing; or
(iii)
terminate this Agreement with immediate effect and in such event, we shall
refund to you the purchase price that you paid and any renewal fees since the
date you first purchased the Software.
Transfer of rights and obligations
We may transfer or assign our rights or obligations arising under this Agreement. You agree to
take all steps necessary to enable us to transfer, assign, charge, sub-contract or otherwise
dispose of this Agreement.
11
Export
You represent and warrant that you are not in violation of and will not violate any export control
laws, regulations or directives in Australia or in your own country or region (if applicable) by
entering into or in the performance of your rights or obligations under this Agreement.
12
Publicity
We may identify you as a customer in our promotional materials. You may request that we stop
doing so by contacting us via email ([email protected]) at any time. We will use our
reasonable efforts to process your request within 30 days.
13
Notices
13.1
For all correspondence please contact us through the contact details provided on our website as
updated from time to time.
13.2
If required, we will contact you via the contact details you provided when purchasing the
Software. In instances where we have multiple contact details available for you, we will contact
you using the most recent contact details we have on file.
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14
Waiver
14.1
Our failure to insist upon strict performance of any of your obligations under this Agreement, or
exercise any of the rights or remedies to which we are entitled under this Agreement, does not
constitute a waiver of such rights or remedies and shall not relieve you from compliance with
such obligations.
14.2
Our waiver of any default shall not constitute a waiver of any subsequent default.
14.3
Our waiver of any of these terms and conditions shall not be effective unless it is expressly stated
to be a waiver and is communicated to you in writing.
15
Severability
If any of the terms of this Agreement are determined by any competent authority to be invalid,
unlawful or unenforceable to any extent, such term, condition or provision will to that extent be
severed from the remaining terms, conditions and provisions which will continue to be valid to
the fullest extent permitted by law.
16
Entire agreement
This agreement constitutes the whole of the agreement between us. You agree that you have
not relied on any statement, representation, assurance or warranty made by any person
(including a third party) in entering into this agreement.
17
Law and jurisdiction
17.1
Where you may have a dispute or claim against us, you agree that the Agreement shall be
interpreted in accordance with Australian law and you submit to the exclusive jurisdiction and
venue of Queensland, Australia.
17.2
Where we may have a dispute or claim against you, due to the variety of actions which may
occur and which may cause us loss, you agree that we may be required to take action in other
jurisdictions in order to protect our rights and you agree to submit to whichever jurisdiction and
venue we consider appropriate for such dispute or claim.
18
Interpretation
In this agreement, unless the context otherwise requires:
18.1
A reference to the singular includes the plural and the plural includes the singular.
18.2
A reference to any contract (including this agreement) or other instrument includes any variation
or replacement of it and as it may be assigned or novated.
18.3
A reference to a law includes subordinate legislation (including regulations) and other
instruments under it and any amendment or replacement of any of them.
18.4
A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an
unincorporated association or an authority.
18.5
A reference to a person includes their legal personal representatives (including executors),
administrators, successors, substitutes (including by way of novation) and permitted assigns.
18.6
A reference to a reference to a day or a month means a calendar day or calendar month.
18.7
No party enters into this agreement as agent for any other person (or otherwise on their behalf
or for their benefit).
18.8
The meaning of any general language is not restricted by any accompanying example, and the
words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation.
18.9
Headings and the table of contents are for convenience only and do not form part of this
Agreement or affect its interpretation.
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18.10
Where there are two or more persons in a party each are bound jointly and severally.
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