PLEASE READ THESE WEBSITE TERMS OF USE ("TERMS") CAREFULLY BEFORE USING THIS SITE. BY CLICKING "ACCEPT" OR BY ACCESSING OR USING OUR SITES (DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS. DO NOT USE OUR SITES IF YOU DO NOT AGREE TO THESE TERMS.
These Terms apply to your access to and use of the websites and similar online services available at gitpod.io, ona.com or any of our other related online properties that link to these Terms (collectively, the "Sites"). The Sites are operated by Gitpod GmbH and it’s affiliates (collectively, "Company" or "we"). We are a company registered in Delaware. To contact us, please email contact@ona.com.
These Terms are a binding agreement between you and Gitpod GmbH ("Company" or "we"). If you are an individual using the Site on behalf of an entity, you represent and warrant that you have the legal authority to bind such entity to these Terms and that such entity agrees to be responsible to Company in the event you violate these Terms. Except for the prior sentence, when we say "you," throughout these Terms, we mean you as an individual and such legal entity. If you are accepting these Terms on behalf of an entity, you agree that such entity is responsible for the acts and omissions of its employees and contractors who access and use the Site in furtherance of their relationship with such entity.
These Terms do not alter the terms or conditions of any other license or agreement that you may have with Company, such as the Services Agreement https://ona.com/legal/terms-of-service or any separate cloud services agreement or marketplace agreement through which you have obtained access to our products and services. Any such licenses and rights will be separately presented to you for review and acceptance at the point of download, installation or first use of such products and services.
1. Changes
Gitpod reserves the right to change these Terms from time to time. If Company makes changes to these Terms, we will provide you with notice of such changes, such as by sending an email, posting a notice on our Sites or updating the date at the top of these Terms. Unless we say otherwise, the amended Terms will be effective immediately and your continued use of the Sites will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of the Sites. If you do not agree to the amended Terms, you must stop using the Sites. Any use of the Sites in violation of these Terms may result in, among other things, termination of your account or right to use the Sites.
2. Privacy
Company's Privacy Policy [https://ona.com/legal/privacy (https://ona.com/privacy)] describes how Company collects, uses and discloses information Company collects about you. Please read Company's Privacy Policy carefully so you understand how Company uses, processes and shares information Company collects about you.
3. Ownership of the Materials
Unless otherwise indicated on our Sites, the Sites and all content and other materials on the Sites – including, without limitation, Company's name, trademarks, logos, taglines, product names, and service names, and all product documentation, artwork, designs, text, graphics, pictures, information, data, other content, and "look and feel" thereof (collectively, the "Site Materials") are the property of Company or its licensors and are protected by U.S. and international trademark, trade dress, copyright, patent and other intellectual property and unfair competition laws. Company's name, trademarks, logos, taglines, product names, and service names are registered and unregistered trademarks of Company. All such rights are reserved.
4. Use of the Site and Site Materials
Company grants you the right to access and use the Site Materials in accordance with these Terms and solely for the following approved purposes: (i) for informational purposes solely to learn about Company and its products and services, and (ii) to purchase products or services sold by Company through the Sites. You may not do (attempt to do), or allow a third party to do, any of the following: (a) use or interfere with the Sites in a way that could interfere with, disrupt, or negatively affect others or our ability to provide the Sites or Site Materials; (b) use our Sites or Site Materials for any illegal or unauthorized purpose; (c) use any technology or other means not authorized by us to access our Sites or Site Materials, or to extract data; (d) attempt to gain unauthorized access to any part of the Sites, including by trying to circumvent any restrictions; (e) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, modify, copy, distribute, publicly perform, publicly display or create derivative works of the Sites, any functionality included within the Sites or the Site Materials, or the source code of the software used to provide the Sites or any functionality included within the Sites (except as and only to the extent permitted by applicable law); (f) introduce into the Sites, or the functionality included within the Sites, any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any software code, which is designed to disrupt, damage, hack into, or perform unauthorized actions on a computer system; (g) use our Sites or the functionality included within the Sites in excess of any applicable technical or capacity limitations; (h) remove or alter any proprietary notices or labels on or in the Sites or the Site Materials; (i) infringe upon or violate the rights of Company, our licensors, other users, or any third party; or (j) use the Sites or the Site Materials other than for their intended purpose. Any use of the Sites or the Site Materials other than as specifically authorized herein, without Company's prior written permission in each instance, is strictly prohibited. Any unauthorized use of the Sites or Site Materials may violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or elsewhere on the Sites, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The Site and the Site Materials are not directed to, or designed and intended, for use by children under the age of 18.
5. Feedback
If you provide Company with questions, comments, suggestions, ideas, or other feedback regarding our products and services, you grant 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. Feedback you provide may be treated as nonconfidential by Company.
6. Third-party Materials
Company may make available through our Sites certain third party content or otherwise provide information about third party content, products or services on the Sites (collectively, "Third-Party Materials"). Your use of Third-Party Materials may be subject to additional terms and conditions of the third party. You acknowledge and agree that your use of any Third Party Materials is at your own risk and that Company is not responsible or liable in any manner for any such Third Party Materials, or for any loss or damage you may incur as the result of your use of such Third Party Materials. Our Sites may also contain links or provide access to other web sites or other online services operated by third parties. Those third-party services are not under our control, and we are not responsible for the content on any third-party service or any link contained in a third-party service. We provide these links only as a convenience and we do not have any obligation to review, approve, monitor, endorse, move, remove, warrant, or make any representations with respect to third-party services.
7. Warranty Disclaimer
YOU UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY IS PROVIDING THE SITES AND THE SITE MATERIALS ON AN "AS IS" BASIS FOR USE AT YOUR OWN RISK. COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SITES AND THE SITE MATERIALS, 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 YOUR USE OF THE SITES 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 YOU.
8. Limitation of Liability
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 YOU 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 YOU AND A COMPANY PARTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SITES OR THE SITE MATERIALS, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR 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 SERVICES; AND (B) 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 THESE SITE TERMS OR YOUR USE OF OR INABILITY TO USE THE SITES OR THE SITE MATERIALS, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO COMPANY FOR ACCESS TO OR USE OF THE SITES. 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 YOU. 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.
9. Indemnification
To the fullest extent permitted by applicable law, you 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) your access to or use of the Sites; (b) your violation of these Terms; or (c) your fraud or fraudulent misrepresentation, intentional misconduct or gross negligence. You agree 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). You also agree that the Company Parties will have control of the defense or settlement, at Company's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company or the other Company Parties.
10. Arbitration
Disputes, differences, controversies, and claims arising out of or related to these Terms or their validity ("Disputes") shall, except as otherwise stated in this Section 10, 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 you 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. You 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 these Terms will continue to apply to you.
11. Governing Law and Venue; Dispute Resolution
These Terms will be governed by the laws of the State of Delaware interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. For any Dispute not subject to arbitration under Section 10, each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware.
12. Termination
Company reserves the right, without notice and in its sole discretion, to terminate, suspend or disable your access to the Sites or the Site Materials if Company reasonably believes you are violating these Terms. Company also reserves the right, at any time, to terminate, modify, suspend, or discontinue the Sites or the Site Materials, or any portion thereof. You agree that Company will not be liable to you or to any third party for any termination, modification, suspension, or discontinuance of the Sites, the Site Materials, or any portion thereof.
13. Communications
You (a) consent to receive communications from us about your account in an electronic form, whether via email or posting on our Sites or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we send to you electronically satisfy any legal requirement that such communications must be in writing. If you have any questions about this, please reach out to contact@ona.com.
14. How to Link to our Sites
You may link to our Sites, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to our Sites on any website that is not owned by you. Our Sites must not be framed on any other site. We reserve the right to withdraw linking permission without notice. The website in which you are linking must comply with all applicable law. If you wish to link to or make any use of content on our Sites other than that set out above, please contact contact@ona.com.
15. Other Important Terms
You agree you will comply with all applicable laws in connection with your access to and use of the Sites and the Site Materials. You shall not, without prior U.S. government authorization, export, re-export, or transfer the Sites, the Site Materials or any other Company products, services or technology, either directly or indirectly, in violation of such applicable laws and regulations. You may not transfer, assign or delegate, by operation of law or otherwise, these Terms or your rights or obligations under it without Company's prior written consent, and any attempted assignment or delegation in violation of the foregoing is void. These Terms binds any permitted successors or assigns, and you must present these Terms to any permitted assignee. You acknowledge that Company has the right to seek an injunction, if necessary, to stop or prevent a breach of your obligations under these Terms. Company's delay or failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by Company will have effect unless such waiver is in writing, and signed by Company. No waiver of any breach or default in one instance will constitute a waiver of any subsequent breach or default. If, for any reason, a court of competent jurisdiction finds any provision of these Terms to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms. The remainder of these Terms will continue in full force and effect to the maximum extent permissible, so as to effectuate the intent of the parties. These Terms constitute the entire agreement between you and Company with regard to your use of the Site and the Site Materials and supersede any prior representation or agreement, oral or written. Notices to Company under this Agreement should be directed to Gitpod GmbH Attn: General Counsel, 1390 Market Street, Suite 200, San Francisco, CA, 94102 with electronic copy to contact@ona.com.
Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
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