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Updated January 15, 2021

GITHUB TECHNOLOGY PARTNER PROGRAM \ TERMS AND CONDITIONS

1. DEFINITIONS
   1. “Affiliate” means any legal entity that a party owns, that owns a party, or that is under common control with a party, where “control” and “own” mean possessing 50% or greater interest in an entity and the right to direct its management.
   2. “Agreement” means the (a) Program Agreement and (b) these Program Terms and the Program Policies, each of which is incorporated by reference into the Program Agreement.
   3. “Beta Previews” means software, services, or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.
   4. “Confidential Information” is defined in Section 3.2 below.
   5. “Effective Date” is the date the Program Agreement was fully executed by GitHub and Technology Partner.
   6. “Feedback” means a comment or suggestion volunteered about the other party’s business, products, or services.
   7. “GitHub” means GitHub, Inc., a Delaware corporation.
   8. “GitHub Property” means the Service, the GitHub Marks, and Confidential Information of GitHub, and all intellectual property in and to the Service, the GitHub Marks, and the Confidential Information of GitHub.
   9. “Marks” means trademarks and service marks, trade dress, trade names, corporate names, designs, slogans, domain names, proprietary logos or indicia, and other source or business identifiers.
   10. “Modification” is defined in Section 8.1 below.
   11. “Program” means the GitHub Technology Partner Program; for purposes of clarification, GitHub may, in its sole discretion, change the name of the Program with reasonable prior notice posted on the Technology Partner Site.
   12. “Program Agreement” means that certain GitHub Technology Partner Program Agreement entered into between GitHub and Technology Partner as of the Effective Date.
   13. “Program Benefits” means the benefits available to Technology Partner under the Program.
   14. “Program Guide” means the guide for the Program, which details additional Program Requirements and Program Benefits (including for Technology Partner Levels), made available on the Technology Partner Site.
   15. “Program Policies” means the Program Guide and other policies and documentation for the Program made available on the Technology Partner Site.
   16. “Program Requirements” means the additional requirements for the Program set forth in the Program Policies.
   17. “Program Terms” means these GitHub Technology Partner Program Terms and Conditions.
   18. “Relationship Manager” means the person designated by Technology Partner who will, on behalf of Technology Partner, manage all aspects of the relationship between GitHub and Technology Partner under the Agreement and with respect to the Program.
   19. “Representatives” means an employee, contractor, advisor, or consultant of a party or one of its Affiliates.
   20. “Service” means the applications, software, products, and services provided by GitHub, including any Beta Previews.
   21. “Technology Partner” is as defined in the Program Agreement.
   22. “Technology Partner Level” means the applicable Program level, if any, set forth in the Program Guide.
   23. “Technology Partner Site” means the online partner portal made available by GitHub to Technology Partner and other entities participating in the Program.

2. PROGRAM ENROLLMENT; PARTNER RIGHTS AND OBLIGATIONS

   1. Program Terms. These Program Terms are terms and conditions between GitHub and Technology Partner with respect to the Program. Upon execution of the Program Agreement, Technology Partner is enrolled in the Program and Technology Partner may, during the term of the Agreement, hold itself out as a “GitHub Technology Partner” and receive the Program Benefits, provided Technology Partner is in compliance with the terms of the Agreement and all Program Requirements. For purposes of clarification, Technology Partner’s appointment as a GitHub Technology Partner is non-exclusive.
   2. Relationship Manager. Technology Partner will designate a Relationship Manager and provide the name and contact information (including telephone number and email address) of the Relationship Manager to GitHub. The Relationship Manager will serve as GitHub’s primary point of contact for Technology Partner with respect to the Agreement and the Program. Technology Partner may replace its Relationship Manager with reasonable notice to GitHub of the replacement and the contact information (including telephone number and email address) of its new Relationship Manager.
   3. Use of Marks. During the term of the Agreement, and subject to the terms and conditions of the Agreement, each party grants to the other party a nonexclusive, non-transferable, non-assignable, limited license to use, solely for activities permitted under the Program, the Marks it provides or makes available to the other party in connection with the Program. Each party will comply with the other party’s branding and logo usage requirements and guidelines for its Marks. Neither party will use the other party’s Marks to imply the other party’s endorsement, sponsorship, or affiliation, except as permitted by the Program Guide, or to disparage the other party or its products or services. All goodwill in a Mark will inure to the benefit of the party that provides or makes available the Mark. Each party will promptly correct any deficiencies in its use of the other party’s Marks after notice.
   4. License. With respect to any Services provided or made available to Technology Partner pursuant to the Agreement or as a participant in the Program, GitHub grants to Technology Partner, during the term of the Agreement, a nonexclusive, non-transferrable, revocable, limited license to access and use the Services solely to perform Technology Partner’s obligations and exercise Technology Partner’s rights under the Agreement and the Program. Technology Partner’s use of the Services must not violate any applicable laws, including export control laws and regulations. Additionally, unless expressly permitted by the Agreement or by law, Technology Partner may not: (a) reverse engineer, decompile, or disassemble any Service, or try to do so; (b) run, upgrade or downgrade, or transfer parts of a Service separately at different times or on different devices; (c) install, use, or distribute other software or technology in any way that makes GitHub’s intellectual property or technology subject to any other license terms; (d) work around technical limitations in a Service or restrictions in Service documentation; (e) sell, rent, lease, sublicense, distribute, or lend any Services to others, in whole or in part, or (f) host Services for use by others. To the extent GitHub and Technology Partner enter into additional agreements or terms and conditions with respect to access and use of a particular Service, those other agreements or terms and conditions (as the case may be) and not the terms and conditions of the Agreement governs such access and use.
   5. GitHub Property. No implied licenses or use rights are provided under the Agreement; licenses and use rights are those expressly stated in the Agreement, and GitHub reserves all other rights to the GitHub Property. As between Technology Partner and GitHub, GitHub owns all right, title, and interest in and to the GitHub Property.
   6. Feedback. Either party may provide Feedback to the other party. Feedback is voluntary and, even if designated as confidential, the party receiving Feedback may use it for any purpose without obligation of any kind. The party receiving Feedback will not disclose the source of Feedback to any third party without the consent of the party providing the Feedback. Unless the parties specifically agree in writing, Feedback will not create any confidentiality obligation on the party receiving the Feedback.

3. CONFIDENTIALITY

   1. Existing NDA. If the parties have entered into a non-disclosure agreement, the terms and conditions of that agreement and not the terms and conditions set forth in this Section 3 and Section 4.5 (Destruction of Confidential Information) below apply with respect to the subject matter of confidentiality and non-disclosure in connection with the Program.
   2. Confidential Information. “Confidential Information” means non-public information in any form that is marked as “confidential” or that a reasonable person should understand is confidential. Confidential Information does not include information that: (a) becomes publicly available without a breach of a confidentiality obligation; (b) was received lawfully from another source without a confidentiality obligation; or (c) is independently developed.
   3. Protection of Confidential Information. Each party will take reasonable steps to protect the other party’s Confidential Information. A party will only use the other party’s Confidential Information as part of the parties’ business relationship. Neither party will disclose Confidential Information to third parties. A party may only share Confidential Information with a party’s Representatives on a need-to-know basis, under nondisclosure obligations at least as protective as the Agreement. Each party remains responsible for the use of Confidential Information by its Representatives. A party must promptly notify the other party if it discovers any unauthorized use or disclosure of the other party’s Confidential Information by the first party or its Representatives.
   4. Disclosure Required by Law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party, if legally permissible, so that the other party can seek a protective order.
   5. Residual Information. Neither party is required to restrict its Representatives in other work assignments if they have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under the Agreement or trade secret law.
   6. Duration of Confidentiality Obligations. The confidentiality obligations under the Agreement apply for a period of five (5) years after a party receives the Confidential Information.

4. TERM AND TERMINATION

   1. Term. The term of the Agreement begins on the Effective Date and extends unless terminated in accordance with this Section 4.
   2. Termination for Convenience. Either party may terminate the Agreement for its convenience upon thirty (30) days’ prior written notice to the other.
   3. Termination for Cause. Either party may terminate the Agreement due to the other party’s material breach of the Agreement that is not cured within thirty (30) days after the non-breaching party provides written notice of the breach.
   4. Termination of Licenses. Upon termination of the Agreement, all licenses granted under the Agreement terminate immediately.
   5. Destruction of Confidential Information. Upon termination of the Agreement, each party will immediately destroy all Confidential Information, including all copies thereof, of the other party then in each party’s possession or control.
   6. Survival. The following sections will survive the termination of the Agreement: Sections 2.5 (GitHub Property), 2.6 (Feedback), 3 (Confidentiality), 5 (Warranties and Disclaimers), 8 (Export Restrictions), and 9 (Miscellaneous).

5. WARRANTIES AND DISCLAIMERS

   1. Warranties. Each party represents and warrants to the other party that at all times during the term of the Agreement: (a) it has and will have all requisite corporate power and authority to execute the Agreement, to perform its obligations under the Agreement, and to consummate the transactions contemplated by the Agreement; (b) it has all rights necessary or appropriate to grant to the other party the rights granted under the Agreement; and (c) it is not presently under, nor will it enter into, any agreement, commitment, understanding or other obligation, whether written or oral, that is inconsistent with or in conflict with the Agreement or would in any way prevent, limit, or otherwise impair its performance under the Agreement.
   2. Disclaimers. Except for express warranties made by GitHub in Section 5.1 above, GITHUB HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND GITHUB PROVIDES THE PROGRAM AND THE GITHUB PROPERTY “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND.
   3. Beta Terms Disclaimers. GitHub will have no obligation under the Agreement for any claim arising from access or use of Beta Previews. Technology Partner may choose to use Beta Previews in its sole discretion. Beta Previews may not be supported and may be changed at any time without notice. Beta Previews may not be as reliable or available as the Service. Beta Previews are not subject to the same security measures and auditing to which the Service has been and is subject. Except as set forth below, GitHub will have no liability arising out of or in connection with Beta Previews. Technology Partner uses Beta Previews at its own risk. For purposes of clarification, the provisions of this Section are in addition to the warranty disclaimers set forth in Section 5.2 above.

6. LIMITATION OF LIABILITY

   IN NO EVENT WILL GITHUB BE LIABLE TO TECHNOLOGY PARTNER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), OR ANY OTHER THEORY, AND WHETHER OR NOT GITHUB KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL GITHUB’S AGGREGATE LIABILITY TO TECHNOLOGY PARTNER ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PROGRAM FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF FIVE HUNDRED DOLLARS ($500). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THE AGREEMENT.

7. EXPORT RESTRICTIONS

   Technology Partner is not allowed to export or re-export any GitHub Property, except as authorized by United States law and the laws of the jurisdiction in which the GitHub Property was obtained. In particular, Technology Partner may not export or re-export any GitHub Property into any U.S. embargoed countries, to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, or to anyone on the U.S. Department of Commerce Denied Person’s List or Entity List. Technology Partner represents and warrants that it is not located in any such country or on any such list.

8. MISCELLANEOUS

   1. Programmatic Changes. GitHub reserves the right, at its sole discretion, to modify the Agreement from time to time to accommodate changes to the Program (a “Modification”). GitHub may provide notification of Modifications to Technology Partner by means of posting such notifications to the Partner Site. GitHub will use commercially reasonable efforts to provide a reasonable notice period for each Modification prior to the Modification becoming effective. Technology Partner’s continued participation in the Program constitutes binding acceptance of Modifications. Technology Partner’s sole and exclusive right to reject a Modification is to terminate the Agreement pursuant to Section 4.2 (Termination for Convenience) above.
   2. Amendment. Except as otherwise provided in Section 8.1 above, the Agreement may not be changed, except by a writing signed by both parties.
   3. Waiver. Any waiver of a provision of the Agreement or of a party’s rights or remedies under the Agreement must be in writing and must expressly state that it is a waiver of the applicable provision(s) of the Agreement to be effective.
   4. Public Announcements. Except as otherwise permitted under the Program Policies, neither party will make any public announcement concerning the Agreement, its terms and conditions, or its subject matter without the other party’s prior written consent.
   5. Independent Contractors. The parties to the Agreement are independent contractors and neither party will have any authority to create any binding obligation on behalf of the other party. Technology Partner and GitHub may each develop products independently without using the other’s Confidential Information or intellectual property. Except as specifically set forth in the Agreement, each party will bear its own costs for its activities in connection with the Agreement and the Program.

   6. Notices. Notices to GitHub may be submitted via https://support.github.com/contact. If Technology Partner wishes to formally serve notice on GitHub, it must be made through GitHub’s registered agent:

      GitHub, Inc.
      c/o Corporation Service Company
      2710 Gateway Oaks Drive, Suite 150N
      Sacramento, CA 95833-3505.

      Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier confirmation of delivery. Notices to Technology Partner will be sent to the individual at the address Technology Partner identifies on its account as its contact for notices. GitHub may send notices and other information to Technology Partner by email or other electronic form. For purposes of clarification, GitHub reserves the right, pursuant to Section 8.1 above, to provide notification of Modifications by means of posting such notifications to the Partner Site.

   7. Assignment. Technology Partner is not allowed to assign or transfer the Agreement, in whole or in part, by operation of law or otherwise, without GitHub’s prior written consent. The Agreement is binding on the parties and their respective permitted successors and assigns.
   8. **No Third Party Beneficiaries. **The Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
   9. Severability. If any part of the Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
   10. Interpretation. Headings of sections in the Agreement are solely for convenience of reference and are not part of the Agreement. Where context admits in the Agreement, the singular includes the plural and vice versa.
   11. Governing Law and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of California and federal laws of the United States. Any legal action or proceeding will be brought exclusively in the federal or state courts located in the Northern District of California. The parties consent to personal jurisdiction and venue there. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement.
   12. Attorney’s Fees. If either party employs attorneys to enforce any rights arising out of or relating to the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.
   13. Entire Agreement; Priority. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all prior communications, representations, understandings, and agreements, whether written or oral. If GitHub and Technology Partner were parties to an effective Technology Partner Addendum to GitHub Marketplace Developer Agreement on the Effective Date, the Agreement supersedes such addendum in its entirety. To the extent of any inconsistency between or among the Program Agreement, these Program Terms, and the Program Policies, the Program Agreement, then the Program Terms, and finally the Program Policies govern.

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