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Rally Software Development Corporation ("Rally") has developed certain technology, as further described below, to provide a service that provides a workspace and semantic web portal for the management of software design, development, maintenance and support. The company identified during registration ("Customer") desires to subscribe to the Rally Service (as defined below) and Rally desires to provide access to the Rally system and provide the Rally Service on the terms and conditions set forth herein.
Rally is willing to provide access to the service and documentation described below to Customer only on the condition that Customer accepts all of the terms in this Subscription Agreement ("Agreement"). You hereby agree that you enter into this Agreement on behalf of Customer and that you have the authority to bind Customer to the terms and conditions of this Agreement.
By clicking on the "Accept" button below, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. If Customer does not agree to any of the terms below, Rally is unwilling to provide access to the Rally Service to Customer, and you should click on the "Do Not Accept" button below to discontinue the registration process.
1. Definitions. As used in this Agreement:
1.1 "Customer Data" means any electronic data or information contained in any database, template or other similar document submitted by Customer through the Rally Service.
1.2 "Documentation" means the user manuals, handbooks, online materials, specifications or forms provided by Rally that describe the features, functionality or operation of the Rally System.
1.3 "Fees" means the fees paid by Customer prior to accessing the Rally Service.
1.4 "Order Form" means the online form completed by Customer through Rally's online ordering utility, which specifies certain terms related to Customer's access to the Rally Service, including Fees, number of Users, Term and the Subscription Administrator.
1.5 "Rally Service" means the online service delivered by Rally to Customer using the Rally System.
1.6 "Rally System" means the technology, including hardware and software, used by Rally to deliver the Rally Service to Customer in accordance with this Agreement.
1.7 "Subscription Administrator" means the individual assigned by Customer having responsibility for all administrative and billing matters relating to Customer's use of the Rally Service, as identified during the online registration process.
1.8 "Term" means the duration of this Agreement.
1.9 "User ID" means the unique identification name and password assigned to each User for access to the Rally Service.
1.10 "Users" means Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Rally Service on behalf of Customer.
2.1 Subscription to the Rally Service. Subject to the terms of this Agreement, Rally hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Rally Service by the number of Users for which Customer has paid the applicable Customer Fee, in accordance with the Documentation and solely for Customer's internal business purposes of managing its software design, development, maintenance and support.
2.2 Additional Users. Access to the Rally Service cannot be shared with anyone other than a User. If Customer wishes to add additional Users ("Additional Users"), Customer's Subscription Administrator must submit a new executed Order Form ("New Order Form"). Upon Rally's approval of the terms of a New Order Form, Rally shall make the Rally Service available to the Additional Users on the terms and conditions set forth in this Agreement and the approved New Order Form. With respect to Additional Users: (i) the term will be coterminous with the preexisting subscription term (either initial term or renewal term); and (ii) Customer will be responsible for any additional Fees for the Additional Users in full for the month in which the New Order Form is approved by Rally.
2.3 Service Levels. Subject to the terms of this Agreement, Rally shall use commercially reasonable efforts to: (a) maintain the security of the Rally Service; (b) provide regular (once daily) backups for the Customer Data; and (c) make the Rally Service generally available 24/7 (24 hours a day, 7 days a week), except for: (i) planned downtime, which shall be any period outside of the hours of 6 am to 9 pm, Mountain Time, Monday through Friday and 8 am to 5 pm Mountain Time, Saturday, Sunday and Holidays, for which Rally uses commercially reasonable efforts to give eight (8) hours or more notice that the Rally Service will be unavailable; and (ii) downtime caused by circumstances beyond Rally's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within Rally's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. Customer is solely responsible for providing, at its own expense, all network access to the Rally Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Rally Service.
2.4 Support. Support services provided by Rally in connection with the Rally Service under this Agreement are set forth at http://www.rallydev.com/contracts.jsp . Rally reserves the right to modify the support services in its reasonable discretion from time to time, which modifications shall become effective upon posting to the above URL.
2.5 Security. Rally has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Rally Service at reputable third party Internet service providers and hosting facilities. "Appropriate Security Measures" means commercially reasonable technical, physical and procedural controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Rally, whether by accident or otherwise. However, Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform Services and Customer Data. Accordingly, Rally cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
3.1 Access and Security Guidelines. Customer's System Administrator will be provided that number of User IDs corresponding to the number of Users for which Customer has paid the applicable Fees. Customer shall be responsible for ensuring the security and confidentiality of its User ID. User IDs may be shared within Customer's organization, provided that User IDs may not be provided to any individual who is not a User (other than the Subscription Administrator) and each User ID may be assigned to and used by only one individual User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Rally Service, and will notify Rally promptly of any such unauthorized use. Customer will not use its access to the Rally Service to: (a) access or copy any data or information of other users without their consent; (b) harvest, collect, gather or assemble information or data regarding other users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Rally Service or the data contained therein; or (d) harass or interfere with another user's use and enjoyment of the Rally Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in its use of the Rally Service.
3.2 Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Rally may take remedial action if Customer Data violates this Section 3.2; however, Rally is under no obligation to review Customer Data for accuracy or potential liability.
3.3 Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Rally System; (b) interfere in any manner with the operation of the Rally Service or the Rally System; (c) allow a third party to access the Rally Service or transfer to a third party any of Customer's rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Rally Service for the benefit of a third party or to operate a service bureau; (d) copy, modify or make derivative works based on any part of the Rally System; (e) create Internet "links" to or from the Rally Service, or "frame" or "mirror" any of Rally's content which forms part of the Rally Service (other than on Customer's own internal intranets); or (f) otherwise use the Rally Service in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
As consideration for the subscription to the Rally Service provided by Rally under this Agreement, Customer will pay Rally the Fees set forth in the applicable Order Form. All Fees will be billed on an annual basis and are due within thirty (30) days of receipt of invoice, unless stated otherwise in the Order Form. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement, except for employment taxes and taxes based on Rally's net income. Rally reserves the right (in addition to any other rights or remedies Rally may have) to discontinue the Rally Service and suspend all User IDs and Customer's access to the Rally Service if any Fees set forth in an Order Form are more than thirty (30) days overdue, until such amounts are paid in full. Customer shall ensure that its Subscription Administrator maintains complete, accurate and up-to-date Customer billing and contact information via the online account section of the Rally Service at all times. Rally will have the right to audit Customer's records relating to Customer's use of the Rally Service to verify that Customer has complied with the terms of this Agreement. If the audit reveals that Customer has underpaid the amounts owed to Rally by five percent (5%) or more in any quarter, Customer will reimburse Rally for all reasonable costs and expenses incurred by Rally in connection with such audit. Customer will promptly pay to Rally any amounts shown by any such audit to be owing plus interest as provided in above.
5.1 Rally System and Technology. Customer acknowledges that Rally retains all right, title and interest in and to the Rally System and all software, materials, formats, interfaces, information, data, content and Rally proprietary information and technology used by Rally or provided to Customer in connection with the Rally Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or learned as a result of Customer's use of the Service (the "Rally Technology"), and that the Rally Technology is protected by intellectual property rights owned by or licensed to Rally. Other than as expressly set forth in this Agreement, no license or other rights in the Rally Technology are granted to the Customer, and all such rights are hereby expressly reserved by Rally.
5.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer grants to Rally all necessary licenses in and to such Customer Data solely as necessary for Rally to provide the Rally Service to Customer or as required by law. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Rally Service. Rally will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Rally will access and use such Customer Data only as required to perform services on behalf of Customer.
6.1 Term. Term will begin on the Effective Date and continue for the period of time specified in the initial Order Form. Thereafter, this Agreement will automatically renew for successive Terms, unless one of the parties gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. Rally shall provide Customer with no less than sixty (60) days prior written notice of the end of the term. Rally reserves the right to increase the Fees applicable to any renewal term upon prior written notice to Customer.
6.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to Rally under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property of the other party in its possession or control. Rally agrees that upon any early termination of this Agreement, Rally will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Rally, at Rally's discretion) for a reasonable time period after termination. Thereafter, Rally will remove all Customer Data from the Rally System and all Customer access to or use of the Rally System and Rally Service will be immediately suspended. The rights and duties of the parties under Sections 4, 5, 6.2, 7, 8, 9 and 10 will survive the termination or expiration of this Agreement.
Rally makes no warranty concerning the Rally System or Rally Service and Customer acknowledges that Rally's sole obligation with regard to the Rally Service is to use commercially reasonable efforts to meet the service levels described in Section 2.3 hereof. ACCORDINGLY, THE RALLY SERVICE, THE RALLY SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY RALLY AND ITS SUPPLIERS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. RALLY AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. RALLY DOES NOT WARRANT THAT THE RALLY SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE.
8.1 By Rally. If any action is instituted by a third party against Customer based upon a claim that the Rally Service or Rally System, as delivered, infringes a United States patent, copyright or trademark, Rally will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Rally may, at its option and expense, and as Customer's exclusive remedy hereunder: (a) procure for Customer the right to continue using the Rally Service; (b) replace or modify the Rally System or Rally Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer's access to the Rally Service and refund any amounts previously paid for the Rally Service attributable to the remainder of the then-current term of this Agreement. Rally will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Rally Service or Rally System (i) after it has been modified by Customer or a third party without Rally's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Rally where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF RALLY AND THE EXCLUSIVE REMEDY OF CUSTOMER AGAINST RALLY OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
8.2 By Customer. If any action is instituted by a third party against Rally: (a) arising out of or relating to the use of the Rally System or Rally Service (including claims by any customer or business partner of Customer) by Customer or any third party with Customer's User ID; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Rally and shall pay all damages attributable to such claim which are finally awarded against Rally or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 8.1 above or arises out of a breach of this Agreement by Rally.
8.3 Conditions. As a condition of the foregoing indemnification obligations, the indemnified party will: (a) inform the indemnifying party of a claim as soon as reasonably practicable after the indemnified party receives notice of the claim; (b) permit the indemnifying party to assume direction and control of the defense of the claim (including the right to settle solely for monetary consideration); and (c) cooperate as requested by the indemnifying party (at its expense) in the defense of the claim. The indemnified party shall have the right to participate, at its expense, in the defense of any claim that is subject to indemnification as set forth in this Section 8.
EXCEPT WITH RESPECT TO RALLY'S INDEMNITY OBLIGATION PURSUANT TO SECTION 8.1, RALLY'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISNG FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE RALLY SERVICE AND THE RALLY SYSTEM, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO RALLY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER'S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST RALLY WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL RALLY BE LIABLE FOR SPECIAL, INCIDENTAL, DIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE RALLY SYSTEM OR RALLY SERVICE, EVEN IF RALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.1 Publicity. Rally and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and Rally, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow Rally to use Customer's name in customer lists and other promotional materials describing Customer as a customer of Rally and a user of the Rally Service.
10.2 Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without Rally's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Rally may assign this Agreement without Customer's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and Rally may subcontract certain aspects of the Rally Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Rally of any of its obligations hereunder.
10.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Denver, Colorado (provided, however, that nothing in this Agreement will prevent Rally from seeking injunctive relief to enforce the terms of this Agreement in any competent venue or jurisdiction), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
10.4 Remedies. Except as provided in Section 8.1, the parties' rights and remedies under this Agreement are cumulative. Customer acknowledges that the Rally System contains valuable trade secrets and proprietary information of Rally, that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to Rally for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and waives any requirement by Rally for posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
10.5 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the physical and/or email address set forth in the initial Order Form (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), (c) sent via email, cable, telegram, telex, telecopier, fax (all with confirmation of receipt) or (d) sent by recognized air courier service.
10.6 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.7 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
10.8 Entire Agreement. This Agreement, together with any related Order Forms is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.