Octopus Deploy Customer Agreement

This customer agreement (Agreement) is a legal agreement between you and Octopus Deploy Pty Ltd ABN 69 160 339 186 (Octopus Deploy, our, we or us), an Australian company. If you are agreeing to this Agreement not as an individual but on behalf of your company, then a reference to "you" or "Customer" in this Agreement is a reference to the company, and the company will be bound by this Agreement.

By clicking on the "I agree" (or similar button or checkbox) that is presented to you at the time of your Order or when subscribing for one of our services, or by using or accessing our products, you agree to be bound by the terms of this Agreement.

We may revise this Agreement from time to time. Where any changes materially affect your rights under this Agreement, we will attempt to provide reasonable notice. You acknowledge and agree that your continued usage of any Products constitutes acceptance of this Agreement as amended.

If you do not agree to the terms of this Agreement (as amended from time to time), you must immediately uninstall and cease using the Products.

This Agreement was last revised on 27 November, 2018.

1. Grant and scope of Agreement

1.1. Scope. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement also includes our Privacy Policy, our Acceptable Use Policy, any Orders, and any other referenced policies and attachments. It also governs any usage of our Products under a free trial or free "community" licensing. For the absence of doubt, this Agreement governs your use of or reliance on:

(a) our commercially available downloadable software products ("Software"), currently designated as "Standard" and "Data Center" deployments (and including any source code to the Software for which you may be provided access under this Agreement);

(b) our cloud-hosted online services ("Hosted Services"),

(together with any related documentation, the Products), and

(c) any related support or maintenance services provided by us ("Support Services").

1.2. Rights. You have no rights in, or to, any Product or Support Service other than the rights granted under this Agreement.

1.3. Software and Hosted Services. Section 3 (Software Terms) applies specifically to Software. Section 4 (Hosted Services Terms) applies specifically to Hosted Services. All other terms of this Agreement apply to all Products unless otherwise specified.

2. Machine and Target Limits

2.1. Limits. For the Octopus Deploy product, your Order may specify a limit on the number of machines or targets you can use Octopus Deploy to deploy your applications to. A "Machine" or "Target" (together, "Targets") is a server (or cloud service) that you use Octopus Deploy to deploy software to. They may be a cloud-hosted Platform-as-a-Service target, or a physical or virtual machine that Octopus communicates with using the Secure Shell (SSH) protocol or running the Octopus Tentacle agent software.

2.2. Targets. Some types of Targets may count as more than one Machine/Target towards your limit. These may change from time to time and will be listed in the Documentation.

3. Software Terms

3.1. Definitions. In this clause 3, the following terms have the specified meaning:

(a) "Data Center Deployment" means a license obtained to the Software as a Data Center deployment as defined in this clause 3.

(b) "Instance" means a running copy of the Octopus Deploy Software (which may or may not run across multiple Nodes) that has its own separate database. Instances are counted whether installed on the same physical or virtual server, or on different servers.

(c) "License Term" means the term of the license granted to you.

(d) "Node" means a single physical server upon which the Software may be installed and operate. The central Octopus Deploy service which is created as a result of operating the Software may be made highly available by running the Software across multiple Nodes (depending on the License).

(e) "Standard Deployment" means a license obtained to the Software as a standard deployment as defined in this clause 3.

3.2. Grant of License. Under the terms of this Agreement, we grant you a worldwide, non-exclusive, non-transferable license to install and use the Software for your own business purposes, during the applicable License Term.

3.3. License Term & Upgrades. The License Term will be specified in your Order. You will have access, free of charge, to all updates, upgrades and patches for the Software that we release during the License Term. You acknowledge and agree that we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason. The License Term may be extended for additional periods of time upon payment of a renewal fee before expiry of the then-current period.

3.4. Standard and Data Center Deployment. The Octopus Deploy Software is available for Standard or Data Center deployments, each of which provides different levels of availability and scalability.

(a) Under "Standard" deployment licensing, for each License that you purchase, you may install and use up to three (3) separate Instances. Instances may be used for production usage, disaster recovery, development or other purposes. Each Instance may only run on a single Node (and is therefore not highly available).

(b) Under "Data Center" deployment licensing, there are no limits to the number of Instances or Nodes that you may install and use.

If you have multiple Instances of Octopus, your Order specifies the maximum number of Targets you may deploy to in aggregate. For example, if you have 3 active Instances, the limit applies to the sum total of all Targets across all Instances. This applies to both Standard and Data Center licenses.

3.5. Source Code. If your Order includes access to the source code of the Software, we grant you a worldwide, non-exclusive, non-transferable, irrevocable license to use the source code for your own internal business purposes on the terms of this Agreement. You may view and modify the source code for the sole purposes of education, troubleshooting, and customizing features for your own particular needs. Any modified source code constitutes "Your Modifications". If you modify the source code, you may compile and distribute the resulting executable application for your own internal business purposes. You acknowledge that the source code contains our valuable intellectual property, and you agree to take reasonable measures to help ensure its confidentiality. 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 Your Modifications. You shall indemnify, defend and hold us harmless from and against any and all claims and costs arising out of or in connection to Your Modifications, subject to you receiving (a) prompt written notice of such a claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such a claim, and (c) all reasonable cooperation from us at your expense.

3.6. Third Party Code. The Products may incorporate material which has been created by third parties from time to time including material licensed to us under an open source 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.

4. Hosted Services Terms

4.1. Access to Hosted Services. Subject to your acceptance and continued compliance with the terms of this Agreement, we grant you a non-exclusive right to access and use the Hosted Services, during the applicable Subscription Term. You acknowledge that the Hosted Services are online, subscription-based products which may change from time to time.

4.2. Subscription Term & Renewals. Your Order will specify the set term during which you will have access to the Hosted Services (Subscription Term). Unless noted otherwise on your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription. If you cancel, your subscription will terminate at the end of the then-current Subscription Term, but you will not be entitled to any credits or a refund for amounts accrued or paid prior to the termination. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change, or if there has been a change in the applicable fees (for which, if applicable, you will be given 90 days' notice before such change takes effect).

4.3. Fair Usage. Your usage of the Hosted Services is governed by our Acceptable Usage Policy.

4.4. Security of Your Data. We implement security measures to help protect the Hosted Services and Your Data from security attacks. However, you acknowledge and agree that as a consequence of the inherent nature of the Hosted Services, Your Data will often be transported over networks that are not owned or operated by us, and that we are not responsible for any of Your Data that is lost, intercepted, altered or stored across such networks. You acknowledge that we are unable to guarantee complete security or confidentiality of Your Data, or that third parties will never be able to defeat our security measures or those of our third-party service providers. We are General Data Protection Regulation (GDPR) compliant: if we discover or are made aware that any of Your Data has been intercepted, we will follow the GDPR reporting guidelines if the intercepted data may have contained any personally identifiable information.

4.5. Termination, removal and suspension. We may remove Your Data from the Hosted Services, or suspend your access to the services, if we deem such action necessary based on your violation of this Agreement or our Acceptable Use Policy. We will generally provide notice and provide reasonable opportunity for you to correct your breach, but we may also suspend your access immediately without notice if we deem it necessary to protect the Hosted Services, security of other customers or to comply with the law. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services.

5. Your Data

5.1. Meaning of Your Data. In this Agreement, "Your Data" means any data, applications, configuration settings, content, code, images or material of any type that you upload, submit or otherwise provide us for any purpose.

5.2. Ownership of Your Data. You are responsible for Your Data. You will retain all right, title and interest in and to Your Data in the format that you provide it to us. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data solely for the purposes of providing any Product to you or to respond to your support requests.

5.3. Confidentiality of Your Data. We may receive or have access to information (including but not limited to documents, data, technical information, methods and processes, computer programs and scripts, reports, manuals) owned or controlled by you which is proprietary or confidential (confidential information). This happens in various ways, not limited to: when you store them in the Hosted Services, or when you include them in a support request. We agree:

(a) that all such information shall be and shall remain your exclusive property; (b) to limit access to such information to only its authorized employees who have a need to know such information in the performance of their work; (c) to inform all of our employees and agents engaged in handling such information of the confidential character of such information; (d) to keep, and have our employees and agents keep, such information confidential; (e) not to copy, publish, or disclose such information to others or authorize others to copy, publish, disclose such information without your written approval; (f) to return promptly any copies of such information to owner at your request; (g) to use such information solely for purposes of fulfilling work or services performed hereunder and for other purposes only upon such terms as may be agreed upon between us in writing; (h) that, in the event any of the information is required to be produced pursuant to a subpoena, court order, valid legal or administrative process, or other operation of law, we shall notify you of such potential disclosure in order that you may take appropriate action at your own expense to limit or prevent such disclosure.

Confidential information shall not include information which:

(a) was known to us before disclosure as evidenced by bona fide written documents; (b) is or becomes publicly known through no wrongful act of ours; (c) is independently developed by us; (d) is disclosed to us by a third party without breach of any obligations of confidentiality.

5.4. Nature of Your Data. You must ensure that Your Data is at all times compliant with our Acceptable Usage Policy and all appropriate laws and regulations. You warrant that you have the rights and permissions to provide Your Data to us, and that your transfer of Your Data to use does not violate any laws, regulations or the rights of third parties.

5.5. Personally identifiable information. You will not submit to us any personally identifiable information (except as necessary for your Authorized Users to use and access a Product). You will not submit to us any patient, medical or other protected health information regulated by any relevant laws in any country.

5.6. Liability. For the avoidance of all doubt, Octopus Deploy assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, storing, disclosing or transmitting it. We have no obligation to monitor any of Your Data uploaded to the service. You acknowledge and agree that you are responsible and liable in respect of Your Data for any obligations or breaches under any relevant legislation in respect of data and information ownership and use, including, without limitation, privacy laws and intellectual property laws.

5.7. Deletion of data. We may remove or delete Your Data within a reasonable period of time after the termination of your relevant License Term or Subscription Term.

6. Restrictions

6.1. Prohibitions on use. Except as otherwise permitted in this Agreement, you will not:

(a) use any Product in any way that could damage our reputation;

(b) rent, lease, sub-licence, loan, translate, merge, adapt, vary or modify any Product;

(c) distribute or disclose any Product, or any portion or modifications or derivative works thereof, to any third party; or

(d) attempt, or engage, solicitor or encourage a third party to attempt, to reverse engineer any Product.

6.2. Obligations. You must:

(a) keep all copies of Products secure;

(b) supervise and control use of each Product ensure that your directors, officers, employees, contractors and agents use the Products and its source code in accordance with the terms of this Agreement; and

7. Termination of Agreement

7.1. Termination. Either party may terminate this Agreement on ninety (90) days’ notice in writing.

7.2. Obligations on termination. On termination of this Agreement, you must immediately cease use of, and destroy, any and all copies of any Product.

8. Warranty

8.1. Consumer Law prevails. Any condition, warranty, representation or other term concerning the supply of the Products 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 which cannot be lawfully excluded or limited. This clause 8 applies to the extent permitted under such legislation.

8.2. Disclaimer. With the exception of title or non-infringement, we expressly disclaim all warranties or guarantees of any kind with respect to the Products, 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 8.2, your remedy is limited to, at our sole discretion, repair or replacement of the Product or refund of the amount you paid for the Product.

8.3. Errors and Omissions. We do not warrant that the Products are 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.

8.4. Intellectual Property Rights We warrant that:

(a) we own the intellectual property rights in the Products and/or have the rights to grant a license to you; and

(b) in creating the Products, we have not knowingly infringed on the intellectual property rights of any third party.

8.5. Warranty Period. We warrant that for two (2) years after the date of purchase ("Warranty Period"), the Products will, when properly used, perform substantially as described (provided that the Product is properly used on the computer and with the operating system and software environment for which it was designed).

8.6. Remedies during Warranty Period. If, within the Warranty Period, a Product fails to perform as described due to a defect or fault (that is not the result of you having modified the Product without our prior knowledge or authorisation 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 Product, provided that you:

(a) notify us in writing of the defect or fault in the Product 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.

8.7. Exclusions to Warranty. The warranty set out at clause 7.5 does not apply to:

(a) beta or pre-release versions of a Product; or

(b) free, trial, or community versions of a Product which are supplied on an as-is basis and without warranties of any kind save for those required by applicable law.

9. Licensor's liability

9.1. Exclusions to liability. 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 a Product;

(c) any consequential loss or damage however arising out of your use of a Product 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.

9.2. Your representations. You acknowledge and agree that:

(a) the Products have not been developed to meet your individual requirements;

(b) it is your responsibility to ensure that the facilities and functions of the Products meets your requirements;

(c) you have made your own independent enquiries and have satisfied yourself of the nature and adequacy of our Products for the purpose for which you have obtained the Products.

(d) the existence of any minor errors shall not constitute a breach of this Agreement; and

(e) the provisions of clauses 7, 8 and 9 are reasonable and reflected in the price which would be much higher without those provisions and you accept such risk.

9.3. Liability proportionate. Our liability for any act or omission is proportional to the extent that each party contributed to the act or omission.

9.4. Limitation of liability. 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 Product, and any renewal fees, in the twelve (12) months prior to the event giving rise to the liability.

10. Third party claims

10.1. You indemnify us. Except as in clause 10.2, if any third-party claims that a Product 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 Product then, without prejudice to our overall liability to such third party, you shall indemnify us from any such loss or damage.

10.2. We indemnify you. If any claim is brought, or you reasonably anticipate that a claim may be brought, against you alleging that your use of the intellectual property associated with the Products infringes the rights of any third party:

(a) you shall promptly (and in any case within 30 days of receiving notice of the actual or potential claim) notify us of the 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) we will pay any damages and costs awarded against you in connection with any claim, . However, we are not and you agree not to hold us responsible or liable for any damages, costs, or expenses suffered or incurred by or awarded against you:

(i) prior to your providing notice of the claim of under clause 10.2(a);

(ii) arising out of any act or omission by you in respect of the claim without our prior and express written consent, including any admission or concession; or

(ii) to the extent that any act or omission by you in the course of your use of the Product caused or contributed to the infringement of the rights of the third party,

(e) we shall have the right, at our sole choice, either:

(i) to negotiate terms for continued use by you of the claimed infringing Product;

(ii) amend the Product 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 Product,

(f) our indemnification obligations in this section 10.2 do not apply if the total aggregate fees received by Octopus Deploy with respect to your license to any Product in the twelve (12) month period immediately preceding the claim is less than USD $50,000.


11. 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.

12. 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.

13. 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 (sales@octopus.com) at any time. We will use our reasonable efforts to process your request within 30 days.

14. Notices

14.1. For all correspondence please contact us through the contact details provided on our website as updated from time to time.

14.2. If required, we will contact you via the contact details you provided when purchasing the Product. 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.

15. Waiver

15.1. You or our failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.

15.2. Our waiver of any default shall not constitute a waiver of any subsequent default.

15.3. A 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 the other party in writing.

16. 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.

17. Entire agreement

This Agreement constitutes the whole of the agreement between the parties. 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.

18. Law and jurisdiction

18.1. Where you or we may have a dispute or claim against the other party, both parties agree that the Agreement shall be interpreted in accordance with Australian law and both parties submit to the exclusive jurisdiction and venue of New South Wales, Australia.

Alternatively, you may nominate that either:

(a) this Agreement be interpreted in accordance with English law and you submit to the exclusive jurisdiction and venue of London, England; or, (b) this Agreement be interpreted in accordance with the laws of laws of the State of California, USA and you submit to the exclusive jurisdiction and venue of San Francisco, California, USA.

If you choose to nominate either (a) or (b), you must do so in writing within 30 days of your initial purchase and before raising any dispute or claim against us.

19. Interpretation

In this Agreement, unless the context otherwise requires:

19.1. A reference to the singular includes the plural and the plural includes the singular.

19.2. 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.

19.3. A reference to a law includes subordinate legislation (including regulations) and other instruments under it and any amendment or replacement of any of them.

19.4. A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority.

19.5. A reference to a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns.

19.6. A reference to a day or a month means a calendar day or calendar month.

19.7. No party enters into this Agreement as agent for any other person (or otherwise on their behalf or for their benefit).

19.8. 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.

19.9. Headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.

19.10. Where there are two or more persons in a party each are bound jointly and severally.