DevOps Research and Assessment LLC

Terms and Conditions for use of any DORA Offerings (the “Terms”)


Updated February 1, 2017

  1. DEFINITIONS. Unless otherwise defined in the terms and conditions below, capitalized terms have the following meaning:

    “Affiliate” means an entity that controls, is controlled by, or is under common control with a party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.

    “Applicable Laws” means all applicable local, state, federal and international laws and regulations. “Authorized User” means any employee, contractor, representative, or other person acting on Customer’s behalf who is authorized by Customer to use the Survey Services (including those taking the Survey) and who has been supplied with access to the Survey Services by either Customer or DORA, at Customer’s written request.

    “Customer Data” means any information uploaded to DORA’s systems by Customer or Authorized Users including Survey responses, the resulting Customer unique output that is generated by the DORA Survey Services when processing the uploaded information, and any information provided by Customer in connection with its use of the Survey Services.

    “Distributor” means an entity that DORA has authorized as a distributor or reseller of DORA’s Offerings.

    “Documentation” means DORA’s user guides, training manuals and other similar information, as updated or revised by DORA from time to time, that DORA provides to Customer at the following location: https://devops-survey.com/kb.php?page=documentation.

    “DORA” means DevOps Research & Assessment, LLC, the owner and licensor of the DORA Technology. “DORA Technology” means the technology and Intellectual Property used in providing the products and services offered by DORA, including the Survey, the Survey questionnaire, computer software programs, websites, networks, and equipment. DORA Technology does not include Third Party Applications.

    “Intellectual Property” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.

    “Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery or invention, whether or not copyrightable or patentable and whether or not reduced to practice.

    “Reports” mean the output of the Survey Services.

    “Survey” means DORA’s assessment survey via a web-based survey tool, which measures DevOps capabilities.

    “Survey Services” means Customer’s license of the Survey of one or more Customer teams within a single business unit.

    “Third Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties.

  2. THE SURVEY SERVICES
    1. Use of the Survey Services. The Survey Services are provided via a “software as a service” model provided to Customer on a subscription basis. DORA grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Survey Services during the Term, solely for Customer’s internal business operations.  DORA reserves all other rights.
    2. Customer’s Account. DORA will enable an account for Customer to access the Survey Services (“Account”). Customer will designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and account information under their control. Except to the extent caused by DORA’s breach of these Terms, including its obligations under Section 7 (Confidential Information), DORA is not responsible for unauthorized access to the Account. Customer will contact DORA promptly if (i) Account information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to its passwords, usernames, access information, or DORA’s Survey Services that may have occurred or is reasonably likely to occur.
    3. DORA’s Responsibilities. DORA will: (i) provide access to the Survey Services via a unique URL to be provided to Customer, and the Survey will be taken by one or more teams in the business unit(s) identified by Customer; (ii) provide one Report per team on the Survey findings which will indicate the team’s level of capability across a number of different axes; (iii) provide a prioritization matrix by business unit which will show which capabilities should be targeted for improvement; (iv) provide Reports to Customer in pdf format; (v) upon request, provide raw Customer Data to Customer; and (vi) deliver a final Report to the Customer with benchmark analysis for Customer teams benchmarked against Customer’s entire business and benchmarked against industry data in our database. Customer shall own the Reports, subject to the license grant to DORA as set forth in Section 3.4 below.
    4. Customer’s Responsibilities. Customer will (i) provide an appropriate-level resource to provide DORA with reasonable access to Customer contacts, background information and data sources; (ii) provide sufficient staff to take the Survey, from a sufficient number of functions, to ensure the statistical validity of the results (iii) ensure its staff has access to the Survey, and the necessary tools available to take the Survey (including up-to-date web browser technology); (iv) provide sufficient and timely feedback to reasonably enable DORA to set up the Survey and deliver the Reports to Customer; (v) ensure the maintenance and use of Customer’s hardware, network, internet connectivity, and software; and (vi) ensure compliance with the Acceptable Use Policy available at https://devops-research.com/legal/, the Documentation, and all Applicable Laws. Customer will ensure that its Authorized Users, Affiliates, employees, agents, and representatives comply with all of Customer’s obligations under these Terms, and Customer is responsible for their acts and omissions relating to these Terms as though they were those of Customer.
    5. Restrictions. Customer shall only use the Survey Services as set forth in these Terms, these Terms, and the Documentation, and not for the benefit of any third party. Customer agrees that it shall not under any circumstances or at any time make an attempt to, nor permit its employees, agents, or any third party to make an attempt to (i) reverse assemble, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from any of the DORA Technology; (ii) reproduce, modify, create, or prepare derivative works of any part of the DORA Technology or Documentation; (iii) distribute or display any of the DORA Technology or Documentation other than to Customer’s Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to the Survey Services or to any product designed or intended for use with the Survey; (v) alter, destroy or otherwise remove any proprietary notices within the DORA Technology or Documentation; (vi) disclose the Survey or raw Customer Data; (vii) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Survey; or (viii) use or allow use of the Survey or the questionnaire in the Survey to any person not employed by or similarly affiliated with the Customer (Customer’s contractors, consultants, and vendors may take the Survey).
  3. PROPRIETARY RIGHTS
    1. DORA’s Intellectual Property. As between Customer and DORA, DORA and DORA’s licensors retain and own all right, title, and interest in all Intellectual Property rights in the DORA Technology, the Documentation, DORA’s Confidential Information, the Survey Services, and all enhancements or improvements to, or derivative works of, the foregoing.  Nothing in these Terms transfers or conveys to Customer any ownership interest in the DORA Intellectual Property.
    2. Suggestions. If Customer provides DORA with any suggested improvements to the Survey Services, then that suggestion is provided as is, and Customer grants DORA a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements.  Notwithstanding the foregoing, nothing in this Section 3.2 (Suggestions) grants DORA a license to use any Inventions covered by a registered patent owned by Customer.
    3. Customer Data. Customer retains all ownership rights in Customer Data and Customer’s Confidential Information, including any Intellectual Property rights therein.  DORA may use Customer Data (i) for internal use in order to maintain, evaluate, develop, and improve its Survey Services; (ii) to respond to a Customer or Authorized User’s support request; or (iii) to fulfill its obligations to Customer under these Terms.  Customer grants to DORA an irrevocable, perpetual, worldwide, non-exclusive, non-transferable, royalty-free, fully paid license to disclose, use, copy, modify, adapt, translate, transmit, display, distribute and/or redistribute, and make and prepare derivative works of the anonymized portions of the Customer Data and responses from the Survey, as needed for DORA’s business purposes, in its sole discretion.
    4. Reports. Customer grants to DORA an irrevocable, perpetual, worldwide, non-exclusive, non-transferable, royalty-free, fully paid license to disclose, use, copy, modify, adapt, translate, transmit, display, distribute and/or redistribute, and make and prepare derivative works of the Reports as needed for DORA’s business purposes, in its sole discretion. All Customer information will be de-identified.
    5. Modifications. Any modifications made to the Survey, the Survey questionnaire, website, or any other property of DORA in the course of these Terms shall not be deemed “Developed Works” of or works made for hire for Customer. However, to the extent where such modifications incorporate Customer Confidential Information, then Customer shall have an exclusive right to those modifications.
  4. SERVICE SUSPENSION AND DISPUTES
    1. Generally. DORA will make a good faith effort to contact and provide notice to Customer in advance of any suspension.  As reasonably practicable under the circumstances, DORA will endeavor to resolve together with Customer any circumstance that may give rise to DORA’s suspension rights, which include, without limitation, the following: (i) a material risk to the security or performance of the Survey Services, the network, or any other DORA Customer or business partner; (ii) use of the Survey Services in violation of these Terms; or (iii) Customer is delinquent in its payment obligations for any undisputed fees as reported to DORA by Distributor.
    2. Effect of Suspension. If DORA suspends Customer’s ability to access the Survey Services, (i) Customer remains responsible for all fees and charges to Distributor, including for Survey Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to DORA’s error or omission.
    3. Intentionally Omitted.
  5. TERM AND TERMINATION
    1. Effective Period of Terms. These Terms shall be effective pursuant to the term of the agreement between Customer and the Distributor (the “Term”).
    2. Intentionally Omitted.
    3. Termination for Breach or Cause. DORA may terminate Customer’s right to use the Survey Services by notice to Distributor who will serve notice to Customer (i) if Customer materially breaches these Terms and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon Customer ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing.
    4. General Effects of Termination. Upon any termination of Customer’s right to use the Survey Services: (i) all of Customer’s rights under these Terms immediately terminate (with the exception of those surviving termination); (ii) except as set forth in Section 5.3 (Termination for Breach or Cause), Customer remains liable to Distributor for all fees, charges, Expenses, and any other obligations Customer has incurred during Customer’s Subscription Term; (iii) upon request, each party will immediately return or, if instructed, destroy the other party’s Confidential Information in its possession or control other than in automatic computer backups.  All provisions that by their nature should survive termination will do so (including, by way of example and not limitation, indemnification and defense obligations, and duties of confidentiality).
  6. INTENTIONALLY OMITTED
  7. CONFIDENTIAL INFORMATION
    1. Confidential Information. “Confidential Information” means all information designated by a party as confidential, or given the circumstances, would reasonably be understood by the receiving party to be confidential, and that is disclosed by either party to the other party, regardless of the form of disclosure.  Confidential Information includes, without limitation, with respect to DORA, the DORA Technology and the Documentation, and with respect to Customer, all Customer Data, and with respect to both parties, all information relating to business plans, customers and customer lists, data, designs, financial information, forecasts, Inventions, know-how, methods, market analysis, pricing, products, prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the disclosing party.
    2. Exclusions. Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
    3. Disclosures Required by Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise prohibited by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.  If, in the absence of a protective order or other remedy or the receipt of a waiver by disclosing party, receiving party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency or similar entity, receiving party may disclose, without liability hereunder, that portion of the Confidential Information that is legally required to be disclosed and receiving party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
    4. Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 7.3 (Disclosures Required by Law), the receiving party shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to third parties except as otherwise permitted by the Terms.  The receiving party may disclose Confidential Information to an employee, advisor, or consultant (“Representatives”) on the condition that the receiving party: (i) ensures that such Representatives are bound by a written agreement that is as substantially protective as these Terms; and (ii) accepts full responsibility for its Representatives’ use of the Confidential Information.  The receiving party shall protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling or disassembling any Confidential Information.
    5. Protection of Customer Data and Confidential Information. DORA will implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Customer Data, or Confidential Information. DORA will implement processes and maintain procedures designed to comply with Applicable Laws.  If DORA engages a subcontractor to facilitate its obligations under these Terms, DORA will use commercially reasonable measures to ensure that such subcontractor implements and complies with reasonable security measures in handling any Customer’s Data or Confidential Information.
    6. Notice. DORA will promptly notify Customer, as soon as reasonably practicable and not later than 72 hours from the time of confirmation by DORA, of unauthorized access, use, or disclosure of any Customer Data, or Confidential Information under DORA’s control.  Each party will reasonably cooperate with the other with respect to investigation and mitigation of any such unauthorized access, use, or disclosure.  Upon confirmation of any vulnerability or breach of DORA’s security, DORA will modify its processes and security program as necessary to remediate the vulnerability or breach at DORA’s sole cost and expense.
  8. DISCLAIMER OF WARRANTIES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DORA TECHNOLOGY IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. DORA DOES NOT WARRANT THAT THE DORA TECHNOLOGY WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DORA MAKES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONCERNING THE DORA TECHNOLOGY, THE SURVEY, THE REPORTS, OR OTHERWISE ARISING OUT OF THESE TERMS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
  9. INDEMNIFICATION
    1. Indemnification by DORA.  DORA will indemnify and defend Customer against any Losses and Litigation Expenses arising from a third party claim that (1) the use of the DORA Survey Services in accordance with these Terms infringes an issued patent, copyright, trademark, or other Intellectual Property right of such third party (an “Infringement”); (2) results from DORA’s breach of these Terms; or (3) results from DORA’s violation of Applicable Laws.  “Loss” means any liability, loss, claim, settlement payment (including any settlement the Indemnitee agrees to pay as long as it is in a written settlement approved by Indemnitor in writing), cost and expense, interest, award, judgment, damages (including punitive damages), fines, fees, penalties, or other charges, other than a Litigation Expense.  “Litigation Expense” means filing fees and court costs, witness fees, costs of investigating and defending third party claims, and reasonable attorneys’ and other professionals’ fees, and any other fees.
    2. If the DORA Survey Services are subject to a claim of Infringement and as a result, Customer’s use of the DORA Survey Services is enjoined, then DORA will, at no cost to Customer, procure for Customer the right to continue using the DORA Survey Services or replace them with non-infringing or modified Survey Services of materially equivalent functionality.
    3. DORA has no obligation with respect to any actual or claimed Infringement to the extent that the Infringement is caused by (1) Customer Data, (2) use or modification of the DORA Survey Services other than as specified in the Documentation or these Terms, or (3) combination of the DORA Survey Services with any products, software, services, data, or other materials not provided by DORA or approved by DORA in writing if the Infringement would not have occurred but for such combination.
    4. Indemnification by Customer. Customer will indemnify and defend DORA against Losses and Litigation Expenses arising from (i) Customer’s use of the Survey results or Reports; (ii) Customer’s breach of these Terms; or (iii) Customer’s violation of Applicable Laws.
    5. Process. The obligations of a party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 9 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in these Terms, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor shall be given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not make any admissions on the Indemnitee’s behalf or settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability and the Indemnitee may participate in the defense of the claim at its sole cost and expense); and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor’s expense.
    6. Exclusive Remedy. This Section 9 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to any type of claim set forth in this section.
  10. EXCLUSION OF CERTAIN CLAIMS; LIMITATION OF LIABILITY
    1. Exclusion of Certain Claims. Neither party will be liable to the other party or any other party for any consequential, indirect, special, punitive, incidental, exemplary or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill, investments, use of money or use of facilities, interruption in use or availability of data, stoppage of other work or impairment of other assets, even if advised of the possibility of such damages, arising out of (i) the performance or nonperformance of these Terms or of products, software or Survey Services provided under these Terms, or (ii) any claim, cause of action, breach of contract, indemnity, or any express or implied warranty, misrepresentation, negligence, strict liability, or other tort.  The previous sentence will not apply to instances of gross negligence or willful misconduct, a party’s breach of its confidentiality obligations set forth in Section 7 (Confidential Information), or a party’s indemnification obligations set forth in Section 9 (Indemnification).
    2. Limitation of Liability. Except for instances of gross negligence or willful misconduct, a party’s aggregate liability will not exceed the fees paid or payable by Customer to Distributor for the DORA Offerings in the 12-month period immediately preceding the event giving rise to the claim.  The previous sentence does not apply to a party’s indemnification obligations set forth in Section 9 (Indemnification), to noncompliance with the acceptable use policy by Customer, Customer Affiliates or Authorized Users, nor to any infringement or misappropriation by a party of any Intellectual Property rights of the other party.
    3. Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property, misuse of Confidential Information, neither party may bring any claim relating to these Terms more than two years after the events giving rise to the claim occurred.
  11. MISCELLANEOUS
    1. Relationship of the Parties. These Terms does not create a partnership, joint venture, agency, or fiduciary relationship between the parties. Distributors and DORA’s other business partners are independent of DORA and are not DORA’s agents.
    2. Third party Applications. DORA is not responsible for nor does DORA in any way endorse any Third party Applications or websites linked to by DORA’s website or Survey Services.
    3. Publicity. Neither party shall issue any public statement regarding these Terms without the other party’s prior written consent.  Unless a party has specifically notified the other party to the contrary in writing, either party may include the name or logo of the other party in lists of customers or vendors.
    4. Governing Law; Jurisdiction and Venue. These Terms will be governed by laws of the state of New York, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction.  For any claims or causes of action arising out of these Terms, the parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in the following locations: (i) if Customer is the plaintiff, in King County, Washington, and (ii) if DORA is the plaintiff, in the applicable jurisdiction of defendant’s corporate headquarters or principal place of business in the United States, or if defendant does not have a principal place of business in the United States, in New York County, New York.
    5. Equitable Relief. Each party acknowledges that damages may be an inadequate remedy if the other party or the Authorized Users violate the obligations under these Terms, and each party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
    6. Force Majeure. Neither party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war.  A party seeking relief from performance under this section must (i) provide notice of such circumstances to the other party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances.  If the failure or delay continues for more than 30 days, the other party may, in its discretion, terminate these Terms.
    7. Notices and Other Communications. Any notices or communications provided for in these Terms to be made by either of the parties to the other shall be in writing. All notices shall be delivered by email, addressed as follows:

      nicole@devops-research.com

      With copies to: todds@itrevolution.net and kelly@cancialosilaw.com

      If any notice concerns notice of breach or warranty non-conformance, notice concerning termination, expiration or renewal of the Term, or notice regarding any indemnification rights or obligations, then in addition to delivery by email, such notices must also be delivered personally or sent by registered mail, or by overnight delivery service (e.g., FedEx or UPS), addressed as follows:

      DevOps Research & Assessment, LLC
      25 NW 23rd Place, Suite 6314
      Portland, Oregon 97201
      Attn: Todd Sattersten

      With a copy to:

      Kelly Cancialosi, Esq.
      Cancialosi Corporate Law Group PLC
      PO Box 10463
      Bainbridge Island, WA 98110

      Either party may by written notice modify or change the address to which future notices and communications to such party shall be directed. Notices sent by mail or overnight delivery service shall be effective upon receipt, and notices given personally shall be effective when delivered.

    8. Successors and Assigns. Customer may not assign its rights or obligations under these Terms without DORA’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign these Terms will be null and void.  The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
    9. Severability. If any provision of these Terms is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the parties and all other provisions of these Terms will remain in full force and effect.
    10. Waiver. No waiver of any provision of these Terms, nor consent by a party to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given.
    11. Entire Agreement. These Terms constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the parties with respect thereto.  Except as specified in Section 3.5 (Modifications), these Terms may not be modified or amended except by a written instrument executed by both parties.  Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable.
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