Terms of Service

This Services Agreement (together with all Orders, the “Agreement”) is between Gitpod GmbH and its Affiliates (“Company”) and the entity or person identified on the applicable Order (“Customer”) and governs the access to and use of the Services. Capitalized terms not defined in the body of the Agreement have the meaning given in Section 14.

By entering into an Order that references this Agreement, or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by Company, Customer agrees to be bound by the terms and conditions of this Agreement. This Agreement is effective as of the Effective Date. Any individual accepting this Agreement on behalf of a Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to this Agreement. Customer may use the Services only in compliance with this Agreement and only if Customer has the power to form a contract with Company. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICES AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.

1. Services

  1. Orders. Customer and Company will enter into one or more Order(s) for the Services. Each Order will identify the applicable Service, as well as any usage restrictions, support terms, Fees, Term and similar information pertaining to Customer’s use of the applicable Services.
  2. Access and Use. Subject to the terms of this Agreement and the applicable Order, Company hereby grants Customer the right to access and use the Services for Customer’s internal business purposes in accordance with the Documentation. If, as part of the Services, Company provides any software components to Customer for download, installation and execution on Customer’s networks and systems, Company hereby grants Customer a limited, non-sublicensable right to install and use such software components solely in connection with Customer’s use of the Services.
  3. Availability and Support. Company will use reasonable efforts to make the Services available to Customer (excluding any planned downtime or unavailability caused by reasons outside of Company’s control). However, Company does not make any guarantee with respect to availability or service levels except as expressly set forth in an Order. Company is not responsible to provide any support for the Services except if set forth in an Order.
  4. Changes to Offerings. Company may change or update the features, functionality or other aspects of the Services, including to reflect changes in technology, industry practices, patterns of system use, and availability of third-party software or other dependent items, and Company will have no liability associated with any such changes or updates.
  5. Compatibility Requirements. Customer is responsible for obtaining and maintaining, at its sole cost and expense, any hardware, equipment, third party software, third party services and all Internet browsers and connections required to access or use the Services. Any such compatibility requirements will be specified in the Documentation .
  6. Third-Party Materials. Company may distribute or make available certain Third-Party Materials with the Services. Third-Party Materials are subject to their own license terms and any applicable flow through provisions will be referred to in an applicable Documentation (including accompanying notice files). If Customer does not agree to abide by the applicable terms for such Third-Party Materials, then Customer should not use such Third-Party Materials.
  7. Beta Products. Company may make available certain Services that are identified as beta, pre-release, experimental features, or similar product that is not fully developed, tested or commercially available (each, a “Beta Product”). Any Beta Product provided under this Agreement is provided on an as-is, as-available basis. Company makes no representation or warranty that any feature in a Beta Product will be available in future Company product and services. For AI Features included in Beta Products: (a) Outputs may be particularly unreliable or inconsistent; (b) AI Features may be discontinued or substantially changed without notice; and (c) Customer assumes all risk of using Beta AI Features in any production environment.

2. User Accounts and Restrictions

  1. Users. Customer is authorized to provide access to and use of the Services to Users in accordance with this Agreement (including any seat limitation, capacity constraints or similar usage restrictions set forth in an Order).
  2. Responsibility for Users. Subject to this Agreement, Users may be employees, representatives or service providers of Customer. Customer is solely responsible for: (a) identifying and authenticating all Users; and (b) all activities that occur under its Users’ usernames, passwords or accounts (and for safeguarding such credentials in connection with the same). Customer will notify Company immediately of any actual or suspected breach of this Agreement by any User or unauthorized access to the account credentials for Users. Any breach of this Agreement by any User is deemed a breach by Customer.
  3. Restrictions. Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (a) reverse engineer, decompile, or attempt to discover any source code or underlying algorithms of the Services (except to the extent applicable laws prohibit this restriction); (b) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Services; (c) remove any proprietary notices or labels in the Services; (d) copy, modify, or create derivative works of the Services; (e) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Services; (f) access accounts, information, data, or portions of the Services to which Customer does not have explicit authorization; (g) use the Services to develop a competing service, including but not limited to: (i) using the Services to train, develop, or improve any competing AI model or coding assistant; (ii) extracting, reverse engineering, or attempting to derive model weights, training data, or algorithms; (iii) systematic extraction of Outputs for the purpose of creating a competing dataset or service; (iv) benchmarking the Services against competing services without Company's prior written consent; (h) use the Services with any high risk activities where the use or failure of the Services could be reasonably expected to lead to death, bodily injury, or environmental damage, or (i) use the Services to obtain unauthorized access to anyone else’s networks or equipment. Customer may access the Services only through interfaces and protocols provided or authorized by Company.
  4. Suspension. Company may, in its reasonable discretion, suspend access to the Services if Company believes that: (a) Customer (or any User) is in breach of this Agreement; (b) use of Services as permitted in this Agreement poses a security risk to Company or Customer; (c) Customer’s use of any Services violates, misappropriates, or infringes the rights of Company or any third-party or violates any applicable law; (d) there is a bug or performance issue with any Services; or (e) any applicable law prohibits Company from performing any of its obligations under this Agreement or providing any aspect of the Services.

3. Data, Privacy & Security

  1. Customer Content. Company may copy, display, modify, and use Customer Content as needed (including via hosted cloud environments pursuant to Section 3.6 below) to provide and maintain the Services and related offerings. Customer is responsible for the accuracy of all submitted Customer Content and represents and warrants it has the right to provide such Customer Content to Company for the purpose of providing the Services. Customer will not submit any Customer Content that (a) violates third party intellectual property or privacy rights, (b) is obscene, offensive, pornographic or defamatory, or (c) that introduces viruses, malware, Trojan horses or similar malicious code into the Services or Company systems, or (d) that otherwise violates applicable law.
  2. Restricted Data. Customer will not input into the Services any of the following types of data: (a) patient, medical, or other protected or regulated health information; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; or (d) special or sensitive categories of data as set forth in the applicable data protection laws.
  3. Privacy Policy. Use of the Services is subject to the Company Privacy Policy
  4. Data Processing Agreement. If Customer uses the Services to process personal data, Customer must (a) obtain necessary consents for processing of personal data by the Services and process such personal data in accordance with applicable data protection laws; and (b) if processing “personal data” or “personal information” as defined under applicable data protection laws, enter into Company’s Data Processing Agreement (please email legal@ona.com (mailto:legal@ona.com) to obtain a copy).
  5. Usage Data. Subject to the terms of this Agreement, Company may use Usage Data for its business purposes, including for analytics, and to improve and enhance its products and services. Company may only disclose Usage Data in an aggregate and de-identified manner. For clarity, Company’s use of Usage Data for analytics and product improvement does not constitute AI model training and any such activities (if ever performed under this Agreement) will be subject to Section 4.3 below.
  6. Data Security. Company implements and will maintain commercially reasonable technical, administrative and physical safeguards designed to protect the safety, security and integrity of the Services, as well as the Customer Content. Customer acknowledges and agrees that the Services utilize a hosted compute environment, and as such: (a) Customer Content, including conversation logs, code, and outputs, will be stored and processed in Company's cloud infrastructure (including cloud services provided by Company’s third party cloud providers); (b) Customer Content may be processed across multiple geographic regions for performance and reliability; and (d) complete data isolation between Company’s customers is not guaranteed in the shared compute environment.

4. AI Features

  1. About AI Features. Certain Services may use and implement AI Features as described in the applicable Documentation.
  2. Customer Content. For clarity, for Services that include AI Features, Customer Content includes (a) Inputs and (b) only to the extent permitted by applicable law, including applicable U.S. and international copyright law, the Output generated through the use of such AI Features. Customer further acknowledges that Company analyzes aggregate patterns in the Inputs and Outputs to generate Usage Data that is used to improve service quality pursuant to Section 3.5 above (including reviewing conversation success rates, common error patterns, and feature effectiveness). By using the Services, Customer hereby consents to such use of the Inputs and Outputs.
  3. AI Model Training. Company does not currently use Customer Content to train proprietary AI models. Should Company develop AI model training capabilities in the future, Company will provide Customer with notice of such training capabilities within the Services and implement appropriate opt-in consent mechanisms prior to using Customer Content for such purposes.
  4. AI Disclaimers. Due to the nature of artificial intelligence and machine learning, information generated by AI Features may be incorrect or inaccurate. Product features in the Services that include AI Features are not human and are not a substitute for human oversight. Outputs may not be unique to Customer. Other users submitting similar Inputs may receive identical or substantially similar Outputs. Customer acknowledges that: (a) similar Inputs from different users may generate identical Outputs; (b) Outputs may incorporate patterns learned from publicly available code; (c) Customer may not have exclusive rights to any Output; and (d) Customer is solely responsible for reviewing Outputs for potential intellectual property conflicts before use. Outputs may include inaccuracies, biases, errors, “hallucinations” or similar mistakes. Customer (and its Users) are solely responsible for verifying the accuracy, security and reliability of all Output. Customer’s use of the Output is solely at its own risk, and requires appropriate professional, technical and subject matter review prior to deployment in Customer’s use case.
  5. Third-Party Materials in AI Features. For clarity, the AI Features use AI models that are Third-Party Materials (such as those from OpenAI, Anthropic, or Google) to provide code generation, completion, or assistance capabilities. Customer acknowledges that: (a) Company's ability to provide AI Features depends on these Third-Party Materials; (b) changes to Third-Party Materials may affect the functionality or availability of AI Features; (c) as set forth in Section 1.6, use of Third-Party Materials is subject to the respective third-party AI providers' terms and limitations; (d) Company is not responsible for interruptions caused by Third-Party Materials; and (e) data processing by Third-Party Materials is subject to the respective third-party AI providers’ privacy policies and data handling practices.

5. Intellectual Property Rights

  1. General. Subject to the rights that Company grants to Customer in Section 1.2, as between Customer and Company, Company owns and retains all rights, title, and interest in and to the Services (including the AI Features), the Documentation, and all improvements, modifications or enhancements to the foregoing, including all intellectual property rights contained therein or related thereto (collectively, the “Company Materials”). Customer agrees not to take any action that would be inconsistent with such ownership. All rights that Company does not expressly grant to Customer in this Agreement to the Company Materials are hereby reserved and Company does not grant to Customer any implied rights or licenses under any theory.
  2. Customer Content. To the extent permitted by applicable law, Customer owns the Customer Content.
  3. Third-Party Materials. With respect to Third-Party Materials, the applicable third party owns all right, title and interest, including all intellectual property rights, in and to the Third-Party Materials.
  4. Feedback. If Customer provides Company with questions, comments, suggestions, ideas, or other feedback regarding the Services or any other Company products and services, Customer grants Company all rights to use and exploit such feedback for any purpose, including to incorporate such feedback within its products and services, without providing payment or any other consideration. Any such feedback provided by Customer may be treated as nonconfidential by Company.

6. Fees and Payment Terms

  1. Fees and Expenses. In consideration for providing the Services, Customer will pay Company the fees as specified in the applicable Order (the “Fees”)
  2. Payment Terms. Customer will pay Company the Fees subject to the payment terms specified in the applicable Order. All payments will be made in the currency specified in the Order via credit card payment, electronic funds transfer or other means specified in the Order, as per the instructions of Company. Company shall not be responsible for any processing fees Customer’s financial institution may impose upon Customer in the payment of its invoices (including without limitation bank transfer fees). Additional terms and conditions regarding payment may be specified in the applicable Order.
  3. Late Payments. Company may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is past due in payment, then Company may limit or suspend the Services until Customer comes into compliance with the applicable payment terms.
  4. Taxes. Fees are exclusive of all taxes, duties, levies, tariffs and other governmental or regulatory charges (including without limitation VAT if applicable). Customer will be solely responsible for payment of all such amounts and any penalties and interest arising from the failure to pay such amounts (other than taxes based on Company’ net income).

7. Term and Termination

  1. Term. This Agreement will commence on the date specified in the initial Order shall remain in effect for the length of the subscription specified in the Order (the “Term”).
  2. Termination. Either party may terminate this Agreement by written notice if the other party is in material breach of this Agreement and such material breach is not cured within 30 days after written notice of such breach from the non-breaching party. Upon termination of this Agreement, each Order entered into by the parties shall be deemed to be simultaneously terminated. Company may terminate this Agreement for any reason with notice to Customer, provided that Company will provide Customer with a pro-rated refund of any pre-paid, but unused Fees in the event Company exercises such right (which will be Customer’s sole and exclusive remedy for such termination).
  3. Effects of Termination. Upon the expiration or termination of this Agreement: (a) all access to the Services shall automatically terminate; (b) all Fees will become due and payable immediately; and (c) each party will destroy or securely delete the other party’s Confidential Information and, upon request, provide written certification of such destruction or deletion. a request to privacy@ona.com (mailto:privacy@ona.com) or privacy@gitpod.io (mailto:privacy@gitpod.io). For clarity, deletion requests will not apply to: (i) Usage Data; (ii) data Company must retain for legal, security, or fraud prevention purposes; or (iii) data in backup systems, which will be purged according to standard retention policies.
  4. Survival. The following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive the termination or expiration of this Agreement: Section 4, 5, 6, 7.4, 8, 9.2, 10, 11, 12, 13 and 14.

8. Confidentiality

  1. Defined. “Confidential Information” means information in any form disclosed by or on behalf of a disclosing party (the “Disclosing Party”), including before the Effective Date, to a receiving party (“Receiving Party”) in connection with this Agreement that (a) the Disclosing Party identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Order. Customer’s Confidential Information includes non-public Customer Content and Company’s Confidential Information includes non-public information about the Services (including any AI Features).
  2. Obligations. The Receiving Party will use the same efforts to protect the Disclosing Party’s Confidential Information that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than commercially reasonable efforts. The Receiving Party may only use the Disclosing Party’s Confidential Information to perform its obligations and exercise its rights under this Agreement. The Receiving Party will not disclose or provide access to the Disclosing Party’s Confidential Information to any third-party, except: (a) for disclosures to the Receiving Party’s: (a) employees or consultants with a need to know such information; or (b) professional advisors or potential investors or acquirers (each in (a) and (b), a “Permitted Recipient”); and (b) the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by applicable law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will promptly inform the Disclosing Party in writing of any actual or suspected loss or alteration of, or unauthorized access to, use or disclosure of, Confidential Information. The Receiving Party’s Permitted Recipients must be bound by confidentiality obligations at least as protective of the Disclosing Party’s Confidential Information as those set contained this Section 8 and the Receiving Party will be liable for any breach of this Agreement by its Permitted Recipients.

9. Representations and Warranties

  1. Mutual Representations and Warranties. Each party represents and warrants that it has all required corporate authority to enter into this Agreement and to perform its obligations under this Agreement, and that the performance of such obligations does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
  2. Disclaimer. While Company strives to ensure that the Services will meet its Customer’s needs, it is acknowledged that Company’s technologies operate in a climate characterized by rapid technological change, including frequent introductions of new products and services, evolving industry standards and changing laws, rules, regulations (including those pertaining to AI and the AI Features), as well as changing customer needs, requirements, preferences and use cases. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE SERVICES (INCLUDING ALL CUSTOMER CONTENT AND ANY OTHER DATA TRANSMITTED BY THE SERVICES) ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS. COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ACCURACY. COMPANY DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. COMPANY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ANY OF COMPANY'S LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO CUSTOMER.
  3. AI Features Disclaimer. Notwithstanding any other provision in this Agreement, Company provides no indemnification, representation or warranty regarding: (a) the non-infringement of any Output generated by AI Features; (b) Customer's right to use, modify, or commercialize any Output; or (c) the originality or uniqueness of any Output. CUSTOMER ACKNOWLEDGES THAT AI FEATURES MAY GENERATE OUTPUT SIMILAR TO EXISTING COPYRIGHTED WORKS AND ASSUMES ALL RISK ASSOCIATED WITH USING SUCH OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR CONDUCTING APPROPRIATE INTELLECTUAL PROPERTY REVIEW BEFORE USING ANY OUTPUT IN PRODUCTION OR COMMERCIAL CONTEXTS. COMPANY MAKES NO REPRESENTATION THAT ANY OUTPUT IS EXCLUSIVE TO CUSTOMER OR FREE FROM THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

10. LIMITATION OF LIABILITY

  1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL COMPANY AND ITS SUBSIDIARIES, PARENT COMPANIES AND AFFILIATES AND EACH OF THEIR DIRECTORS, EMPLOYEES OR AGENTS (INDIVIDUALLY AND COLLECTIVELY, THE "COMPANY PARTIES") BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, FOR ANY CAUSE OF ACTION, LEGAL CLAIM, OR OTHER DISPUTE BETWEEN CUSTOMER AND A COMPANY PARTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM CUSTOMER’S RELIANCE ON ANY INFORMATION OBTAINED FROM COMPANY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO COMPANY'S RECORDS, PROGRAMS OR SERVICE.
  2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  3. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CUSTOMER.
  4. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY FOR ANY DAMAGES CAUSED BY A COMPANY PARTY'S FRAUD, FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.

11. INDEMNIFICATION

  1. Indemnity. To the fullest extent permitted by applicable law, Customer will indemnify, defend and hold harmless the Company Parties from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to (a) Customer’s access to or use of the Services; (b) Customer’s breach of this Agreement, including Claims that the Customer Content infringes, violates or misappropriates any third party rights; or (c) Customer’s fraud or fraudulent misrepresentation, intentional misconduct or gross negligence.
  2. Process. Customer agrees to promptly notify Company of any third-party Claims, cooperate with Company Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). Customer also agrees that the Company Parties will have control of the defense or settlement, at Company's sole option, of any third-party Claims.

12. COMPLIANCE WITH LAW; SPECIAL TERMS

  1. General. Each party agrees to comply with all applicable laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Company or Customer in accordance with the receipt and provision of Services under this Agreement.
  2. Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Services or any related technology or materials from any jurisdiction in which the Services are available in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the Office of Foreign Asset Controls (OFAC), or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an embargoed country; (b) an entity organized under the laws of an embargoed country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Company may terminate this Agreement immediately without notice or liability to comply, as determined in Company’s sole discretion, with applicable export controls and sanctions laws and regulations.
  3. Government Rights. The Company Service and any provided software components are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
  4. Anti-Bribery. Neither party will take any action that would be a violation of any applicable laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Company or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010 and similar EU anti-bribery regulations.
  5. Special Terms for International Jurisdictions. Customer may be entitled to legal protections under the applicable laws of their jurisdiction; nothing in this Agreement with contradict or override those rights Customers are entitled to under applicable law and that cannot be overridden by contract.
  6. Age Restrictions and Consumer Use. The Services are intended for professional and commercial use. All Users must be at least 18 years of age or the age of majority in their jurisdiction. Company does not knowingly collect information from individuals under 18. Customer represents that all Users are authorized adults capable of entering binding agreements.

13. MISCELLANEOUS

  1. Successors and Assigns. Neither party may assign this Agreement or any of its rights under this Agreement or any Order entered into hereunder without the prior written consent of the other party and any such assignment shall be null and void. Notwithstanding the foregoing, Company may assign this Agreement without the consent of Customer to any Company Affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  2. Force Majeure Events. Neither Party will be liable for any failure or delay in its performance under this Agreement due to Force Majeure Events. The delayed Party must give the other party notice of such Force Majeure Events and use commercially reasonable efforts to correct such failure or delay in performance.
  3. Governing Law. This Agreement, each Order, and all claims and controversies arising hereunder and thereunder will be governed by and construed in accordance with the internal laws of the State of Delaware in the United States, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. For any Dispute not subject to arbitration under Section 13, each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware.
  4. Dispute Resolution. Disputes, differences, controversies, and claims arising out of or related to this Agreement or its validity ("Disputes") shall, except as otherwise stated in this Section 13, be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (“DIS”) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three (3) members. Either party may submit a Dispute to arbitration if a period of sixty (60) days has expired since the Dispute first arose between the parties, during which time the parties will attempt in good faith to resolve the Dispute amicably. The arbitration provisions herein, however, shall not preclude either party from (a) petitioning any court of competent jurisdiction or any government agency or entity with competent jurisdiction for temporary injunctive or other emergency relief or (b) seeking to confirm or enforce any arbitral award in any court of competent jurisdiction. Company and Customer will each select one arbitrator, and the two arbitrators so selected will select a third arbitrator. The decision of the majority of the three arbitrators will be binding and conclusive. Such decision will be written and will be supported by written findings of fact and conclusions which will set forth the award, judgment, decree or order awarded by the arbitrators. Any award issued hereunder shall be final, binding and fully enforceable, and judgment on the award, judgment, decree or order rendered by the arbitrators may be entered in any court of competent jurisdiction. The seat of the arbitration is Kiel, Germany. The language of the arbitration shall be English. In any arbitration hereunder, the prevailing party will be entitled to recover (in addition to any other relief awarded or granted) its reasonable costs and expenses, including attorneys' fees, incurred in the proceeding. The fees of each arbitrator and the administrative fee of the DIS will be borne equally by both parties. Customer may opt-out of this arbitration provision by delivering written notice to Company via email at contact@ona.com (or to the address set forth below) within 30 days after first becoming subject to this provision; all other provisions of this Agreement will continue to apply to Customer.
  5. Publicity. Neither Party shall issue any public statement regarding this Agreement or the subject matter hereof without the other Party’s prior written consent. Unless Customer has specifically notified Company to the contrary in writing, Company may identify Customer and use Customer's name and logo in marketing to identify Customer as a user of Company's products and services. Any such use shall comply with Customer’s brand guidelines as may be provided by Customer to Company.
  6. Entire Agreement. This Agreement and any applicable Order(s) comprise the entire agreement of the parties concerning the subject matter hereof and supersede all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any request for proposal, purchase order, acknowledgement, or other similar document provided by Customer will modify this Agreement, regardless of any failure of Company to object to such terms. In the event of a conflict between this Agreement and any Order, this Agreement will govern unless the Order specifically notes a provision to be changed and the matter it is revised.
  7. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  8. Waivers; Amendments. All waivers of rights arising under this Agreement must be made in writing by the party waiving rights. Company reserves the right to update this Agreement at any time. Company will update the Last Updated Date at the top of this page if Company updates this Agreement. If a change to this Agreement materially modifies Customer’s rights or obligations, then Company may require that Customer accept the modified Agreement in order to continue to use the Services.
  9. Notices. Any notice provided under this Agreement will be effective if it is sent via electronic mail to the applicable email address specified in the Order. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given on the same day an electronic mail is sent to the recipient.
  10. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
  11. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from this Agreement; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the parties’ original intent to the fullest extent permitted by applicable law; and (c) this Agreement will remain in full force and effect.

14. Definitions

  1. “Affiliates” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the ownership of more than fifty percent (50%) of the voting securities or other ownership interest of the entity, or the power to direct the management and policies of the entity, whether through ownership, by contract, or otherwise.
  2. “AI Features” means artificial intelligence and machine learning technologies, including algorithms, toolsets, generative capabilities, language models, predicative analytic features, and similar technologies. AI Features may include both those AI Features that are proprietary to Company, as well as Third-Party Materials.
  3. “Customer Content” means data, code, information, or materials submitted by or on behalf of Customer or the Users to the Services.
  4. “Documentation” means any user manuals, appendices, exhibits, and any other instructional, technical, or training materials that Company provides to Customer in printed form, via a Company website, or as otherwise referenced in this Agreement in connection with the Services, as may be updated by Company from time-to-time.
  5. “Input” are prompts, inputs and other content submitted by Customer into any AI Features included in the Services.
  6. “Effective Date” means the date that an Order is mutually executed by the parties, or the Agreement is accepted via an online click-through mechanism in connection with Customer’s submission of an Order.
  7. “Force Majeure Event” means any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet, but in all cases excluding the payment of Fees.
  8. “Order” means a separate ordering document governing Customer’s use of the Services (whether via an online ordering mechanism (i.e., website checkout form or similar process), separate written order form or similar ordering document).
  9. “Output” are the generative results of Input submitted into the AI Features included in the Services.
  10. “Services” means those specific Company products, services and features made available to Customer under this Agreement as specified in an Order and further described in the Documentation (made available under either Company’s Gitpod or Ona brand names).
  11. “Third-Party Materials” means any third-party products provided with or incorporated into Services, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
  12. “User” means an individual authorized by Customer with log-in rights to access and use the Services in accordance with the terms of this Agreement.
  13. “Usage Data” means data about the provision, use, and performance of the Services and related offerings based on Customer or its Users’ use of the Services, including but not limited to: (a) technical logs, telemetry, and performance metrics; (b) aggregate data and insights generated through Input and Output analytics; (c) error patterns, success rates, and completion metrics; (d) feature usage statistics and user interaction patterns; (e) language preferences and workflow data, and (f) any other similar usage data generated through use of the Services.

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