Codecov Software Terms and Conditions

Table of Contents

Last Updated: May 20, 2020

1. Certain Definitions
2. Provision of Software and Documentation
3. Ownership and Data Rights
4. Fees; Payment
5. Subscription Term and Termination
6. Confidentiality
7. Privacy and Security
8. Suggestions and Improvements
9. Representations and Warranties
10. Indemnification
11. Limitation of Liability
12. Compliance with Laws
13. Miscellaneous

These Codecov Software Terms and Conditions, as amended from time to time ("Terms"), are entered into by and between Codecov LLC, a Delaware company with offices at 168 Jersey Street, San Francisco, California 94114 ("Codecov") and the customer identified in an Order Form that references these Terms ("Customer"). These Terms and any Order Form that references these Terms are collectively referred to herein as the "Agreement". By accessing or using the Software (as defined below) or clicking a button or checking a box marked “Submit”, “I Agree”, “I Accept”, or something similar, or by otherwise affirmatively manifesting your assent to this Agreement, Customer signifies that Customer has read, understood, and agrees to be bound by this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements in this Agreement, the parties hereby agree as follows:

1. Certain Definitions

"Applicable Laws" means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.

"Customer Inputs" means data, algorithms, methodologies, software code, and other information Customer provides, posts, uploads, publishes, transmits or distributes on or through the Software.

"Effective Date" means: (a) the date on which the parties have mutually executed an Order Form; or (b) the date on which Customer has otherwise completed Onboarding.

"Fees" means the amounts payable by Customer to Codecov pursuant to this Agreement that are agreed-to during Onboarding.

"Marks" means trade names, trademarks, service marks, trade dress, logos and other rights in indicia.

"Onboarding" means the process by which Customer procures from Codecov a subscription to use the Software, which may occur via the execution of an Order Form or through a self-service sign-up process made available on Codecov’s website.

"Order Form" means a written order form, purchase order, or other similar ordering document mutually agreed-upon by the parties that incorporates these Terms by reference.

"Software" means Codecov’s hosted or on-premise proprietary code coverage software platform.

"Subscription Term" means the subscription period agreed-to during Onboarding.

2. Provision of Software and Documentation

2.1 License Grant

During the Subscription Term and subject to the Terms (including any user limitations set forth in the Order Form), Codecov hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to: (a) install or access, as applicable, and use the Software in the format identified during Onboarding solely for Customer’s internal use up to the number of concurrent employees or contractors of Customer identified during Onboarding who Customer permits to access and use the Software ("Authorized Users") and (b) use the product documentation provided by Codecov in connection with the Software (the "Documentation") solely for Customer’s internal use in connection with Customer’s use of the Software.

2.2 Restrictions

Customer will not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or access the Software or Documentation except as permitted hereunder; (b) use the Software or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Software or any copy thereof to any third party; (d) misappropriate any data or information from the Software or Documentation; (e) disrupt the functioning of the Software; (f) otherwise act in a manner that interferes with Codecov’s operation of the Software or with the use of the Software by others; (g) gain any unauthorized access to the Software or Documentation for any other purpose; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Software, Documentation, or any security technology, software, or rights management information contained within the Software or in any software used to enable the Software; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Software or Documentation; (j) access or use the Software to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the Software in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or Software infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Software infrastructure); or (l) attempt, or encourage or assist any third party to do, any of the foregoing.

2.3 Third Party Software

All or some portions of the Software, including open source software, may be provided under separate or additional terms and conditions ("Third Party Software"). Notwithstanding anything to the contrary in this Agreement, any and all such Third Party Software is made available on an “as is” and “as available” basis without warranty or indemnity of any kind. To the extent there is a conflict between the terms and conditions applicable to such Third Party Software and this Agreement, the Third Party Software’s applicable terms and conditions shall control.

2.4 Reservation of Rights

Codecov reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software or Documentation.

2.5 Delivery

Codecov will deliver the Software electronically via one of the following methods: (a) if “Hosted” is selected above, Codecov will provide Customer with login credentials to allow Customer and its Authorized Users to access and use the Software via a hosted interface; or (b) if “On-Premise” is selected above, Codecov will deliver the Software in object code form via a reasonable method mutually agreed upon by the parties.

2.6 Customer Responsibilities

Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software and Documentation and will cause Authorized Users to comply with such provisions.

3. Ownership and Data Rights

3.1 Ownership

As between Codecov and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Inputs; and (b) Codecov owns all right, title and interest in and to the Software, Documentation, and Usage Data (as defined below), including but not limited to all intellectual property and other proprietary rights therein and thereto. "Usage Data" means data and other information arising from Licensee’s use of the Software.

3.2 Customer License

Customer hereby grants to Codecov during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to sublicense and use the Customer Inputs as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Software to Customer) and for such other purposes identified in Codecov’s privacy policy, available at https://codecov.io/site/privacy, as it may be updated by Codecov from time to time.

4. Fees; Payment

4.1 Fees

Customer shall pay the Fees [within thirty (30) calendar days of Customer’s receipt of Codecov’s invoice]. Fees are non-refundable unless otherwise set forth in this Agreement (including without limitation the applicable Order Form) or as required by Applicable Laws.

4.2 Late Payments

Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Codecov harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder.

4.3 Taxes

Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Codecov's net income. If Codecov has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Codecov with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.4 Fee Increases

Codecov may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Subscription Term by providing Customer notice of changes to the Fees at least forty-five (45) days prior to the end of the then-current Subscription Term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.

5. Subscription Term and Termination.

5.1 Effective Date and Subscription Term.

Unless earlier terminated in accordance with this Section 5, this Agreement and the license granted hereunder shall be effective as of the Effective Date and shall continue through the Subscription Term. The Agreement will automatically renew for additional periods equal to the length of the initial Subscription Term unless a party provides the other written notice of its intention not to renew at least thirty (30) days prior to the end of the then-current Subscription Term.

5.2 Termination for Cause.

Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; (b) if the Software becomes, in its entirety, subject to the circumstances described in Section 10.2(iii); or (c) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

5.3 Effect of Termination.

Sections 1, 2.2, 2.3, 2.4, 2.6, 3, 4, 5.3, 6 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 7, 8, 9, 10.1 (solely with respect to claims arising during the Subscription Term), 10.2, 10.3, 10.4, 10.5, 10.6, 11, 12, and 13 shall survive termination of this Agreement. If Customer terminates this Agreement for cause under Section 5.2, then Codecov will provide Customer a refund of the Fees paid for the then-current Subscription Term, prorated by a fraction the numerator of which will be the number of days during the Subscription Term during which Customer had access to the Software and the denominator of which will be the total number of days during the Subscription Term. Within five (5) days after termination of this Agreement, the receiving party shall return to the disclosing party or, upon the disclosing party's request, destroy, at the receiving party’s expense, all Confidential Information and materials containing any Confidential Information of the disclosing party and deliver to the disclosing party a certification, in writing signed by a duly authorized representative of the receiving party, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither the receiving party nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.

6. Confidentiality

6.1 Confidential Information; Nonuse and Nondisclosure

Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the "Confidential Information"). Notwithstanding any failure to so designate them, the Software, the Documentation and the Terms shall be Codecov's Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

6.2 Remedy

Each party agrees and acknowledges that any breach or threatened breach of this Section 6 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

7. Privacy and Security

Customer understands that by using Codecov’s products and services, Customer agrees to Codecov’s collection, use and disclosure of Customer personal information and other Customer Inputs as set forth in our Privacy Policy, which is hereby incorporated into these Terms. Customer further understands that by using Codecov’s products and services it agrees to have its personal information and other Customer Inputs collected, used, transferred to and processed in the United States. Customer understands that Codecov cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use Customer personal information or other Customer Inputs for improper purposes. Customer acknowledges that it provides personal information and other Customer Inputs at its own risk. For the purposes of these Terms, "personal information" is defined in the Privacy Policy, available at https://codecov.io/site/privacy, as it may be updated by Codecov from time to time.

8. Suggestions and Improvements.

Customer may choose to or Codecov may invite Customer to submit comments or ideas about Codecov’s products and services, including without limitation the Software and Documentation ("Feedback"). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Codecov under any fiduciary or other obligation, and that Codecov is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Codecov does not waive any rights to use similar or related ideas previously known to Codecov, or developed by its employees, or obtained from sources other than Customer.

9. Representations and Warranties

9.1 Performance Warranty; Sole and Exclusive Remedy

Codecov hereby represents and warrants to Customer that: (a) during the Subscription Term the functionality of the Software will not be materially decreased from the functionality of the Software available as of the Effective Date (the "Performance Warranty"); and (b) Codecov will use reasonable efforts consistent with industry standards designed to ensure that no viruses, spyware, malware, or similar items ("Malicious Code") will be coded or introduced into the Software. Customer’s sole and exclusive remedy for Codecov’s breach of its Performance Warranty will be to terminate this Agreement and receive a refund in accordance with Section 5.3.

9.2 Customer Representations and Warranties

Customer hereby represents and warrants that: (a) its use of the Software and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses and/or uses through or in connection with the Software or Documentation; (c) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and Codecov’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right, (ii) any liability from Codecov to any third party, or (iii) the payment by Codecov of any fees to any third party.

9.3 Warranty Disclaimer

9.3.1 General Disclaimer

EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (A) CODECOV, ON BEHALF OF ITSELF AND ITS LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND CODECOV AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SOFTWARE.

9.3.2 Results of Use of the Software

THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND CODECOV’S PROVISION OF, THE SOFTWARE MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SOFTWARE IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, CODECOV HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES CODECOV FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE SOFTWARE.

10 Indemnification

10.1 Codecov Indemnity

Codecov shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Software infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Codecov may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).

10.2 Codecov Options

Should the Software become, or in the opinion of Codecov be likely to become, the subject of such an infringement claim, Codecov may, at its option: (a) procure for Customer the right to use the Software at no cost to Customer; (b) replace or modify, in whole or in part, the Software to make it non-infringing; or (c) if neither (a) nor (b) are, in Codecov’s sole and absolute discretion, commercially practicable, accept return of the Software, or remove the allegedly offending module thereof, and, refund the Fees paid for such Software or module by Customer, less an amount determined by multiplying the Fees paid for such Software or such module during the then-current Subscription Term by a fraction, the numerator of which is the number of months during the then-current Subscription Term during which Customer had use of the Software and the denominator of which is the total number of months during the then-current Subscription Term.

10.3 Exclusions from Codecov Indemnity

Codecov assumes no liability hereunder for: (a) any method or process in which the Software may be used; (b) any compliance with Customer’s specifications; or (c) the combination, operation or use of the Software with non-Codecov programs or data, and Customer shall indemnify and hold harmless Codecov and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (c) (inclusive) above.

10.4 Customer Indemnification

Customer shall defend, indemnify, and hold harmless Codecov and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Codecov’s ingestion, commingling, processing, use, or distribution of the Customer Inputs as permitted hereunder; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Software in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2 or 9.2; or (iii) Customer’s negligence or willful misconduct.

10.5 Indemnity Procedures

The party seeking indemnification (the "Indemnified Party") must provide the party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.

10.6 Sole Remedy for Infringement

THIS SECTION 10 SETS FORTH CODECOV’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SOFTWARE AND THIS AGREEMENT.

11. Limitation of Liability

11.1 Liability Caps

EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CODECOV HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

11.2 Damages Waiver

EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 9, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Excluded Claims

As used in this Agreement, "Excluded Claims" means: (a) Customer’s breach of Section 2 or 9.2; (b) either party’s breach of its confidentiality obligations under Section 6; (c) either party’s indemnification obligations under Section 10 (provided that in no event shall Codecov’s liability in connection with such obligations exceed one million U.S. dollars ($1,000,000.00)); and (d) the gross negligence or willful misconduct of either party or its agents.

11.4 Customer Acknowledgment

Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

12. Compliance with Laws

Each party will comply with all Applicable Laws.

13. Miscellaneous

13.1 Assignment

Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 13.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

13.2 Delays

In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 13.2 (each a "Force Majeure Event"), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

13.3 Governing Law; Dispute Resolution

This Agreement shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Dover, Delaware. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Dover, Delaware, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13.3 shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.

13.4 Relationship of the Parties

Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

13.5 Publicity

Customer hereby grants to Codecov during the Subscription Term and for six (6) months following the expiration or termination of the Subscription Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer’s Marks in Codecov’s advertising, literature and websites for the purpose of identifying Customer as a current or former Codecov client or affiliate. This license shall include the right to use quotes from Customer’s Authorized Users regarding their satisfaction with Codecov and/or the Software. This license shall also include the right to perform a case study to determine and publicize how the Software improved Customer’s development. Customer shall have no right to use Codecov’s Marks.

13.6 Notices

All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Codecov must be sent to legal@codecov.io.

13.7 U.S. Government Restricted Rights

If the Software is being licensed by the U.S. Government, the Software is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense ("DOD) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

13.8 Export Law Assurances

Customer understands that the Software is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SOFTWARE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

13.9 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

13.10 Advice of Legal Counsel

Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.

13.11 Costs

If any action at law or in equity (including arbitration) is necessary to enforce or interpret the Terms, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

13.12 Entire Agreement; Modification; Waiver; Severability

This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Codecov may, in its sole discretion and from time to time, modify these Terms to reflect changes to Applicable Laws or to the Software. Accordingly, Customer should review this page periodically. Customer’s continued use of the Software after any such change constitutes Customer’s acceptance of the new Terms. If Customer does not agree to any of these Terms or any future Terms, Customer will not use (or continue to use) the Software. Changes will not apply retroactively and will become effective no sooner than fourteen (14) days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately. If Customer does not agree to the modified Terms, Customer should discontinue use of the Software. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.