1. Definitions
“Application” means an application object as counted and limited by the Software. Client will identify the Application(s) in the
Software. During the term of this Agreement Client may remove an Application from the Software and identify another Application
in its place, provided the total number of purchased Applications is never exceeded. The total number of purchased Applications
is specified on the applicable Order(s).
“Client” means the natural or legal entity represented by its duly authorized representative that enters into this Agreement with
Supplier. The Client is specified on the applicable Order(s).
“Dashboard” means a dashboard object as counted and limited by the Software. The total number of purchased Dashboards is
specified on the applicable Order(s).
“Development Use” means use of the Software by Client to design, develop and/or test new applications for Production Use.
“Documentation” means the operating instructions and user manuals provided with the Software and/or available on Supplier’s
website.
“Failure” means either (a) a failure of the Software to conform to the specifications set forth in the Documentation, resulting in
the inability to use, or restriction in the use of, the Software, and/or (b) a problem requiring new procedures, clarifications,
additional information and/or requests for product enhancements.
“Foreign Elements” means viruses, worms, Trojan Horses, time bombs or other alike foreign elements.
“Hardware” means any hardware of Client, or hardware under exclusive control of Client.
“Host” means a distinct end point as counted and limited by the Software. Client will identify the Host(s) in the Software. During
the term of this Agreement, Client may remove a Host from the Software and identify another Host in its place, provided the total
number of purchased Hosts is never exceeded. Hosts may only be purchased in Host packs as specified in the applicable Order(s).
The total number of purchased Hosts is specified on the applicable Order(s).
“Initial Term” means, unless otherwise specified in the related Order, a term of three (3) years after Effective Date.
“License” means the License defined in clause 2.1 hereafter.
“Maintenance Release” means Upgrades and Updates to the Software which are made available to licensees pursuant to this
EULA.
“Order” means the document by which Software and Support are ordered by Client. The Order and any subsequent orders by
Client shall be governed by the terms and conditions of this EULA.
“Production Use” means use of the Software by Client for its own internal business purposes only.
“Project” means a project object as counted and limited by the Software. A Project is limited to the total number of Test
Specifications specified in the applicable Order(s). The total number of purchased Projects is specified on the applicable Order(s).
“Satellite” means a satellite object as counted and limited by Supplier’s XL Deploy Software. Client will identify the Satellites in
XL Deploy. During the term of this Order Client may remove a Satellite and identify another Satellite in its place, provided that
the total number of purchased Satellites is never exceeded. The total number of purchased Satellites is specified on the applicable
Order(s).
“Service Hours” means the hours between 8.30 a.m. to 5.00 p.m. during Work Days.
“Software” means the object code versions of the software as described on an Order and in the related Documentation.
“Subscription” means the License and Support together.
“Subscription Fee(s)” means the annual fee for the Subscription as mentioned in the applicable Order(s).
“Subsidiary” means any corporate entity in which Client owns or controls, directly or indirectly, the majority of the issued share
capital of that corporate entity and over which it exercises effective control.
“Supplier” means XebiaLabs, Inc., having its registered offices at 98 North Washington Street, Suite 501, Boston MA 02114 United
States of America.
“Support” means the technical support for the Software pursuant to this EULA.
“Test Specifications” means a reference by the Software to tests that the Software can execute and to a test tool’s test results
that the Software can analyse. The total number of purchased Test Specifications is specified on the applicable Order(s).
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Version: September 3 2015
“Territory” means the United States of America and/or any additional territories agreed to by the parties as set forth on the Order.
“Update” means either a software modification or addition that, when made or added to the Software, corrects the Failure, or a
procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the
Failure on Client.
“Upgrade” means a revision of the Software released by Supplier to its end user customers generally, during the term of the
Subscription, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release
of a new product or added features for which there may be a separate charge.
“User” means the specific individual(s) as indicated by Client who are therewith authorized to use the Software on behalf of Client
within the scope of this License. The number of the initial Users are indicated on the Order.
“Work Days” means Monday through Friday, from 8.30 a.m. to 5.00 p.m. (local time), with the exception of generally recognized
national holidays in the Commonwealth of Massachusetts.
2. License
2.1 Supplier grants Client a non-exclusive and non-transferable (except as permitted herein) license for the term of this Agreement
to use the Software and the Documentation on the Hardware on the Location(s), solely for Client’s Production Use and/or
Development Use, subject to this EULA (the “License”). The License is limited to the total number of Applications, Hosts, Projects,
Satellites, Test Specifications, Dashboards and/or Users indicated on the applicable Order(s). For the avoidance of doubt,
Production Use and/or Development Use do not include the right to reproduce the Software for sublicensing, resale, or distribution
to any other third party.
2.2 Client may only allow its third party consultants to access and use the Software for Client’s Production Use or other operations
provided they have signed an agreement with Client protecting Supplier’s intellectual property with terms no less stringent than
these terms and conditions and that Client ensures that such consultant’s use of the Software complies with the terms of this
EULA.
2.3 Client’s Subsidiaries may only use the Software and the Documentation in the Territory for Production Use and/or Development
Use after prior written approval from Supplier.
2.4 The following limitations apply:
(i) Client agrees not to lease, rent or sublicense the Software to any third party, or otherwise use it except as permitted in this
Agreement;
(ii) Client agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols
from the Software;
(iii) Client may not copy the Software, except after prior written approval from Supplier and if so, limited to archival or disaster
recovery purposes. If Client does copy for these purposes, Client will preserve any proprietary rights notices on the Software
and place such notices on any and all copies Client has made or makes;
(iv) Client shall not create or attempt to create any derivative works from the Software except and only to the extent permitted
by law.
2.5 Supplier retains all rights not expressly granted to Client in this EULA.
2.6 This License is granted under the condition that the Subscription Fee(s) is/are paid by Client.
3 Fees and audit
3.1 Except as otherwise provided herein, Subscription Fees paid are non-refundable.
3.2 Subscription fees shall be paid by Client for at least the entire Initial Term and invoiced annually in advance.
3.3 Client will pay all applicable sales, use, VAT, and other consumption taxes and other taxes.
3.4 Supplier may, at any time during the term of this Agreement and with seven (7) days prior written notice, request and gain
access to Client’s premises subject to Client’s security procedures, for the limited purpose of conducting an audit to determine
and verify that Client is in compliance with these terms and conditions. Client will promptly grant such access and cooperate with
Supplier in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its
purpose and not disrupt Client’s operations. Client shall be liable for promptly remedying any underpayments revealed during the
audit. If the audit reveals an underpayment in excess of five per cent (5%), Client will also be liable for the costs of the audit and
Supplier may suspend Client’s use of the Software and/or terminate this Agreement immediately.
4 Delivery
4.1 The Subscription is ordered annually in advance of Supplier’s provision of the Subscription.
4.2 Supplier shall deliver the Software electronically unless otherwise agreed between the parties. 
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Version: September 3 2015
4.3 Installation of the Software shall not be performed by Supplier, unless agreed otherwise by the parties in writing. If installation
of the Software is performed by Supplier, Supplier will charge Client on the basis of time and material against the then current
rates of Supplier with a minimum of 4 hours per installation performed by Supplier.
5 Warranty
5.1 Supplier warrants that it is entitled to license the Software to Client.
5.2 Supplier warrants that the Software does not contain Foreign Elements at delivery of the Software to the Client.
5.3 For a period of ninety (90) days after first delivery of the Software following the initial date of the Agreement, Supplier warrants
that the Software shall conform in all material respects to the Documentation. Supplier does not warrant that operation of the
Software will be uninterrupted or “bug” free.
5.4 If Supplier breaches the foregoing warranty and Client promptly notifies Supplier in writing of the nature of the breach, Supplier
shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge. If, after
a reasonable opportunity to cure, Supplier does not repair or replace the non-conforming Software, Client must return the
Software and Documentation to Supplier, or certify in writing that all copies have been destroyed, and Client will receive a refund
of the Subscription Fee it paid for the Subscription. This is Client’s sole and exclusive remedy for breach of the exclusive warranty
in clause 5.3.
5.5 THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY.
6 Intellectual Property
6.1 Title, ownership rights and all intellectual property rights in and to the Software shall remain the sole and exclusive property of
Supplier and its licensors.
6.2 If a third party claims that Client’s use of the Software infringes any patent subsisting in the Territory, copyright, trademark or
trade secret, Client must promptly notify Supplier in writing. Supplier will defend Client against such claim if Client reasonably
cooperates with Supplier and allows Supplier to control the defense and all related settlement negotiations, and then Supplier will
indemnify Client from and against any damages finally awarded for such infringement.
6.3 If an injunction is sought or obtained against Client’s use of the Software as a result of a third party infringement claim, Supplier
may, at its sole option and expense, (i) procure for Client the right to continue using the affected Software, (ii) replace or modify
the affected Software with functionally equivalent software so that it does not infringe, or, if either (i) or (ii) is not commercially
feasible, (iii) terminate the Subscription and refund the Subscription Fee received from Client for the affected Software less a
usage charge based on a twelve (12) months amortization schedule.
6.4 Supplier shall have no liability for any third party claim of infringement based upon (i) use of other than the then current, unaltered
version of the applicable Software, unless the infringing portion is also in the then current, unaltered release; (ii) use, operation
or combination of the applicable Software with non-Supplier programs, data, equipment or documentation if such infringement
would have been avoided but for such use, operation or combination; or (iii) any third party software. The foregoing constitutes
the entire liability of Supplier, and Client’s sole and exclusive remedy with respect to any third party claims of infringement of
such intellectual property rights.
7 Limitation of Liability
7.1 Except for Supplier’s intentional or gross negligence, Supplier’s aggregate liability to Client for damages concerning performance
or non-performance by Supplier or in any way related to this Agreement, and regardless of whether the claim for such damages
is based in contract, tort, strict liability, or otherwise, shall not exceed the Subscription Fee paid by Client for the affected Software
for the twelve (12) month period preceding the occurrence of such liability.
7.2 In no event shall Supplier be liable for any indirect, incidental, special, punitive or consequential damages, lost data or lost profits,
even if Supplier has been advised as to the possibility of such damages.
7.3 Supplier is adequately insured and shall continue to be adequately insured during the term of this Agreement.
8 Term and Termination
8.1 This Agreement ends after its Initial Term. An automatic renewal does not apply, unless parties agree otherwise.
8.2 At the expiration of the Initial Term or each agreed consecutive term, Client may continue to receive a Subscription in one (1)
year increments under Supplier’s then current fees and terms and conditions. Supplier shall provide Client reasonable notice of
the possibility to renew its Subscription and the then applicable Subscription Fees due. If Client elects not to renew its Subscription,
Client shall notify Supplier of its intent not to renew. 
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8.3 Either party will be in default if it declares bankruptcy or otherwise fails to perform any of its duties or obligations and does not
undertake an effort to substantially cure such default within thirty (30) days after written notice is given to the defaulting party,
except that any breach of clause 15.1 (Confidentiality) shall be grounds for immediate termination. In the event of default, the
non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party.
8.4 Supplier is entitled to terminate this Agreement immediately, including the Subscription, if Client breaches the License restrictions
contained in clause 2.
8.5 If this Agreement is terminated, for any reason whatsoever, Client must promptly, at Supplier’s direction, destroy or return all
affected Software and Documentation.
8.6 Termination of this Agreement explicitly does not release parties from those obligations which, by their nature, are intended to
remain in effect, including the provisions with respect to confidentiality, engaging of third parties and liability for taxes and
premiums, intellectual property, liability, and applicable law and dispute resolution.
9. Support
9.1 Client shall specify its requested form and/or type of Support on the Order.
9.2 Support includes Maintenance Releases and advice regarding the use and functioning of the Software by telephone, email and/or
online via remote control. Telephone, email and online support are available during Service Hours.
9.3 Subject to additional terms and conditions, Client may also order customized support options which may include support during
24/7.
9.4 Supplier’s obligation to provide Support is conditioned upon the following: (i) Client provides Supplier with sufficient information
and resources to correct the Failure which may include remote access to Client’s site, as well as access to the personnel, hardware,
and any additional software involved in discovering the Failure; (ii) Client promptly installs all Maintenance Releases; and (iii)
Client procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary
to operate the Software.
10. Updates
10.1 Supplier will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Failure. If such
Failure has been corrected in a Maintenance Release, Client must install and implement the applicable Maintenance Release;
otherwise, the Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance
Release containing the permanent Update is available.
10.2 Client shall reasonably determine the priority level of a Failure pursuant to the following:
Priority 1: A Failure that makes it impossible for any user of the Software to use the primary function of Software.
Priority 2: A Failure for which a workaround exists.
Priority 3: A cosmetic Failure.
10.3 (i) On a Failure with priority 1, Supplier shall assign a specialist(s) to correct the Failure, begins to provide a temporary workaround
or fix and provides ongoing communication on the status of an Update within four (4) hours on a Work Day upon notification by
Client;
(ii) On a Failure with priority 2, Supplier shall assign a specialist(s) to correct the Failure, begins to provide a temporary
workaround or fix and provides ongoing communication on the status of an Update within two (2) Work Days upon notification
by Client;
(iii) On a Failure with priority 3, Supplier may include an Update in the next Maintenance Release.
11. Upgrades
11.1 During the term of the Subscription, Supplier shall make Maintenance Releases available to Client if, as and when Supplier makes
any such Maintenance Release generally available to its licensees. If a question arises as to whether a product offering is an
Upgrade or a new product or feature, Supplier’s opinion will prevail, provided that Supplier treats the product offering as a new
product or feature for its end user customers generally.
12. Escrow
12.1 Supplier has entered into an escrow agreement with an escrow agent. Client may sign up to this agreement as a beneficiary at
the cost of Client.
13. Limitations
Supplier is not obligated to provide Support in the following situations: 
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Version: September 3 2015
(a) the Software has been changed, modified or damaged (except if under the direct supervision of Supplier);
(b) the Failure is caused by Client’s negligence, hardware malfunction or other causes beyond the reasonable control of Supplier;
(c) the Failure is caused by third party software not licensed through Supplier;
(d) Client has not installed and implemented Maintenance Release(s) so that the Software is a version supported by Supplier; or
(e) Client has not paid the Subscription Fee when due.
14. Termination of Support
14.1 During the term Support is ordered by Client, Supplier will support and maintain (i) the then-current version of the Software; and
(ii) any preceding version of the Software for period of one (1) year after such preceding version is first superseded. Supplier
shall have no obligation to support or maintain any other version of the Software. The version of the Software is indicated by the
number x.y; Upgrades are indicated by the “y” and are consecutive numbered.
14.2 Supplier provides information on its website regarding the expected new version, current version and end-of- life of the
immediately preceding version of then-current Software.
14.3 Supplier reserves the right to suspend performance of Support if Client fails to pay any amount that is payable to Supplier under
the Agreement within thirty (30) days after such amount becomes due.
15. Miscellaneous
15.1 Confidentiality: Each of the parties warrants that all of the information received by the other party which is known to be or should
be known to be confidential in nature, shall remain secret and be kept confidential, unless a legal obligation mandates disclosure
of that information. The party receiving confidential information shall only use it for the purpose for which it has been provided.
Information shall in any event be considered confidential if it is designated by either of the parties as such. Client acknowledges
that the Software contains valuable trade secrets and confidential information of Supplier. Notwithstanding the above, either may
disclose the existence but not the content of this Agreement for its investor relations and marketing purposes which includes use
of the other party’s name and/or logo.
15.2 Force Majeure: Neither party shall be liable for any delay or failure in performance due to “Force Majeure”. Force Majeure shall
mean, collectively and individually, strike or other labour trouble, fire or other natural casualty, governmental pre-emption of
priorities or other controls in connection with a national or other public emergency, or any other cause, whether similar or
dissimilar, beyond a party’s reasonable control.
15.3 Assignment: Client may not assign this Agreement without Supplier’s prior written consent.
15.4 Severability: If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity
of the other parts of the Agreement.
15.5 Waiver: The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
15.6 Reference: Client agrees that he may be referenced as Supplier’s client with respect to the Software. Client may be referenced
to on Suppliers’ website and/or in press releases and Supplier is granted the right to use Clients’ name and logo in that respect.
15.7 Notices: All notices permitted or required under this Agreement shall be in writing and shall be delivered by registered mail to
the address of the party specified above or such other address as either party may specify in writing. Such notice shall be deemed
to have been given upon receipt.
15.8 Entire agreement: This EULA and all Orders form the entire agreement (“Agreement”) and supersede all prior or contemporaneous
oral or written agreements between the parties in respect of the Subscription. The Agreement shall prevail regardless of any preprinted or conflicting terms on a purchase order submitted by Client or any other correspondence submitted by Client, and any
and all verbal communication. Supplier may amend this EULA from time to time. Supplier will provide notice of any amendment
in time, ultimately thirty (30) days prior to the date of entry into force.
15.9 Governing Law: This Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of
law rules and the UN Convention for the International Sale of Goods (CISG). Any dispute regarding this Agreement, or disputes
arising from this Agreement, shall be subject to the exclusive jurisdiction of the Commonwealth of Massachusetts.