diff --git a/Policies/github-marketplace-developer-agreement.md b/Policies/github-marketplace-developer-agreement.md index 9bb5351f..0f48517d 100644 --- a/Policies/github-marketplace-developer-agreement.md +++ b/Policies/github-marketplace-developer-agreement.md @@ -17,7 +17,7 @@ Capitalized terms utilized in this Agreement and not defined herein shall have t "Developer" means you, and you are the company or individual who has created the software, content, and digital materials for use in connection with GitHub and accessible via Marketplace. -"Developer Application" or "Developer Product" means the Software, content and digital materials created by You for use in connection with GitHub and accessible via Marketplace. +"Developer Application" or "Developer Product" means the Software, content and digital materials created by You for use in connection with GitHub and accessible via Marketplace and includes Actions. “End User” means any person, company or other legal entity that will acquire licenses to Developer Product via the GitHub Marketplace. @@ -29,35 +29,31 @@ Capitalized terms utilized in this Agreement and not defined herein shall have t “Taxes” means any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, real or personal property, withholding or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing.” -"Unverified Developer Application" means any Developer Application for which you have not completed GitHub's [product](https://developer.github.com/marketplace/getting-started/requirements-for-listing-an-app-on-github-marketplace/) and [security verification](https://developer.github.com/marketplace/getting-started/security-review-process/) processes. - “Usage Data” means Marketplace related data generated in connection with End User use of GitHub Marketplace and licensure of Developer Products, including but not limited to usage statistics and aggregated sales data. Usage Data does not include and specifically excludes banking and payment information. -"Verified Developer Application" means any Developer Application for which you have completed GitHub's [product](https://developer.github.com/marketplace/getting-started/requirements-for-listing-an-app-on-github-marketplace/) and [security verification](https://developer.github.com/marketplace/getting-started/security-review-process/) processes. - ### 2. PURPOSE AND LICENSE GRANT -**2.1** This Agreement sets forth the terms and conditions pursuant to which Developer may publish Listings on GitHub Marketplace for purchase of Developer Products by End Users and use in connection with GitHub.com. This Agreement is applicable to Developer’s Products distributed for free and Products for which End Users are charged a fee. Developer agrees to use the GitHub Marketplace solely for purposes permitted by this Agreement or as otherwise allowed by applicable law. As between GitHub and Developer, Developer is solely responsible for Developer Products. +**2.1** This Agreement sets forth the terms and conditions pursuant to which Developer may publish Listings on GitHub Marketplace for purchase of Developer Products by End Users and use in connection with GitHub.com. This Agreement is applicable to Developer Products distributed for free and Developer Products for which End Users are charged a fee. Developer agrees to use the GitHub Marketplace solely for purposes permitted by this Agreement or as otherwise allowed by applicable law. As between GitHub and Developer, Developer is solely responsible for Developer Products. **2.2** Developer grants to GitHub a non-exclusive, worldwide, transferable, sublicensable, fully paid-up, royalty-free license to (a) host, link to, reproduce, modify, publicly perform, publicly display, test, distribute, make available, license and otherwise use the Listing; (b) reproduce, perform, display, use and access the Listing for administration and demonstration purposes in connection with the operation and marketing of the Marketplace; and (c) reproduce, display, distribute and otherwise use any Developer Brand Features furnished by Developer to GitHub under this Agreement solely for use in connection with the Marketplace and in order to fulfill its obligations under the Agreement. -**2.3** In addition to the licenses granted above, GitHub may include Developer Brand Features furnished by Developer to GitHub under this Agreement in any presentations, communications, marketing materials, press releases, customer lists (including, without limitation any customer lists, posted to GitHub websites), publicity campaigns and other advertising collateral for purposes of marketing the Marketplace. If Developer discontinues the distribution of specific Products on the Marketplace, GitHub will, after a commercially reasonable period of time, cease use of the discontinued Products’ Brand Features. Nothing in this Agreement gives Developer a right to use any GitHub Brand Features. +**2.3** In addition to the licenses granted above, GitHub may include Developer Brand Features furnished by Developer to GitHub under this Agreement in any presentations, communications, marketing materials, press releases, customer lists (including, without limitation any customer lists, posted to GitHub websites), publicity campaigns and other advertising collateral for purposes of marketing the Marketplace. If Developer discontinues the distribution of specific Developer Products on the Marketplace, GitHub will, after a commercially reasonable period of time, cease use of the discontinued Developer Products’ Brand Features. Nothing in this Agreement gives Developer a right to use any GitHub Brand Features. -**2.4** Developer grants to each End User a non-exclusive, worldwide right or license to perform, display, and use the Products and any content contained in, accessed by or transmitted through the Products in connection with the Marketplace. Developer must include a separate end user license agreement (“EULA”) in its Products that will govern the End User’s rights to the Products in lieu of the foregoing sentence. Developer acknowledges and agrees that the applicable EULA for each Product is solely between Developer and the End User. GitHub shall not be responsible, nor have any liability whatsoever, under any EULA. +**2.4** Developer grants to each End User a non-exclusive, worldwide right or license to perform, display, and use the Developer Products and any content contained in, accessed by or transmitted through the Developer Products in connection with the Marketplace. Developer must include a separate end user license agreement (“EULA”) in its Developer Products that will govern the End User’s rights to the Developer Products in lieu of the foregoing sentence. Developer acknowledges and agrees that the applicable EULA for each Developer Product is solely between Developer and the End User. GitHub shall not be responsible, nor have any liability whatsoever, under any EULA. -**2.5** Except for the license rights granted in this Agreement, (a) Developer retains all rights in the Products; (b) each party retains all rights it has independent of this Agreement, including rights under the US Copyright Act or similar laws of other jurisdictions; and (c) each party owns all rights, title and interest in its respective Brand Features. Each party is responsible for protecting and enforcing its own respective rights and neither party has an obligation to do so on the other’s behalf. +**2.5** Except for the license rights granted in this Agreement, (a) Developer retains all rights in the Developer Products; (b) each party retains all rights it has independent of this Agreement, including rights under the US Copyright Act or similar laws of other jurisdictions; and (c) each party owns all rights, title and interest in its respective Brand Features. Each party is responsible for protecting and enforcing its own respective rights and neither party has an obligation to do so on the other’s behalf. -**2.6** Developer acknowledges and agrees that GitHub shall be entitled to provide Developer’s name, address and other contact details to any third party that reasonably, in GitHub’s sole determination, claims that Developer does not possess all of the necessary intellectual property rights in or to the Products. +**2.6** Developer acknowledges and agrees that GitHub shall be entitled to provide Developer’s name, address and other contact details to any third party that reasonably, in GitHub’s sole determination, claims that Developer does not possess all of the necessary intellectual property rights in or to the Developer Products. ### 3. RESTRICTIONS AND RESPONSIBILITIES Notwithstanding any of the requirements set forth in Section 2, Purpose and License Grant, above, Developer acknowledges and agrees that its use of the Marketplace and participation in the Program is explicitly conditioned on Developer’s adherence to this Agreement, including without limitation, the restrictions and compliance requirements set forth in this Section 3. -**3.1** Developer agrees it will protect the privacy and legal rights of all End Users. If an End User provides Developer with, or the Product otherwise collects, discloses, accesses or uses, End User names, passwords or other personal information, then the Developer must (a) inform End Users that such information will be available to the Products; and (b) provide legally adequate privacy notice and protection to End Users. Further, Developer Products may only use the information for the limited purpose for which Developer has obtained permission from End User. If Developer Products store or transmit personal or sensitive information provided by or obtained from End Users, then Developer must ensure all such activity is done so securely and must respond promptly to complaints, removal requests, and “do not contact” requests from GitHub or Marketplace End Users +**3.1** Developer agrees it will protect the privacy and legal rights of all End Users. If an End User provides Developer with, or the Product otherwise collects, discloses, accesses or uses, End User names, passwords or other personal information, then the Developer must (a) inform End Users that such information will be available to the Developer Products; and (b) provide legally adequate privacy notice and protection to End Users. Further, Developer Products may only use the information for the limited purpose for which Developer has obtained permission from End User. If Developer Products store or transmit personal or sensitive information provided by or obtained from End Users, then Developer must ensure all such activity is done so securely and must respond promptly to complaints, removal requests, and “do not contact” requests from GitHub or Marketplace End Users **3.2** In order to use and access the GitHub API, Developer must obtain API credentials (a “Token”) by becoming a subscriber. Developer may not share its Token with any third party, shall keep such Token and all login information secure and shall use the Token as Developer’s sole means of accessing the GitHub API. -**3.3** Developer acknowledges and agrees that it will not engage in any activity with the Marketplace, including the distribution of Products, that violates Marketplace policies or that: +**3.3** Developer acknowledges and agrees that it will not engage in any activity with the Marketplace, including the distribution of Developer Products, that violates Marketplace policies or that: - 1\. Violates any applicable laws or regulations or promotes unlawful activities; - 2\. Contains or installs any active malware or exploits, or uses our platform for exploit delivery (such as part of a command and control system); @@ -84,18 +80,15 @@ Notwithstanding any of the requirements set forth in Section 2, Purpose and Lice **3.6** Developer will respect and comply with the technical and policy-implemented limitations of the GitHub API and the restrictions of this Agreement in designing and implementing Developer Products. Without limiting the foregoing, Developer shall not violate any explicit rate limitations on calling or otherwise utilizing the GitHub API. -**3.7** Marketplace Security Requirements -For Listings of Verified Developer Applications, Developer agrees to meet the [security requirements](https://developer.github.com/marketplace/getting-started/security-review-process/) with regard to development, support, and distribution of the Developer Product made available via the GitHub Marketplace. - -**3.8** GitHub reserves the right to terminate this Agreement immediately if GitHub determines that Developer breached any requirement or obligation of this Section 3. +**3.7** GitHub reserves the right to terminate this Agreement immediately if GitHub determines that Developer has breached any requirement or obligation of this Section 3. -**3.9** Nothing in this Agreement shall prevent either party from developing and/or publishing applications that are similar or otherwise compete with the other party's applications. +**3.8** Nothing in this Agreement shall prevent either party from developing and/or publishing applications that are similar or otherwise compete with the other party's applications. ### 4. TAKEDOWNS **4.1** Your Takedowns. Upon providing GitHub with thirty (30) days written notice in advance of the 1st day of the succeeding calendar month, you may remove your Listings from future distribution via Marketplace, but you must comply with this Agreement for any Listing distributed through Marketplace, including but not limited to refund requirements. Removing your Listing from future distribution via Marketplace does not (a) affect the license rights of End Users who have previously purchased or installed your Listing or (b) change your obligation to deliver or support Listing that has been previously purchased or installed by users. -Notwithstanding the foregoing, in no event will GitHub maintain on any portion of Marketplace any Listing that you have removed from Marketplace and provided written notice to GitHub that such removal was due to +Notwithstanding the foregoing, in no event will GitHub maintain on any portion of Marketplace any Listing that you have removed from Marketplace and provided written notice to GitHub that such removal was due to: - (i) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, - (ii) an allegation of defamation or actual defamation, @@ -141,17 +134,17 @@ In the event that your Listing is involuntarily removed because it is defective, **5.3** Developer represents, warrants and covenants that: (i) its Developer Products and Developer Brand Features do not and will not violate, misappropriate or infringe upon the intellectual property rights of any third party; (ii) Developer will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and distribute its Developer Products; and (iii) its Developer Products do not and will not contain or introduce into the Marketplace, the GitHub API, any Usage Data or other data stored or transmitted using the Marketplace, any malicious software; (vi) its Developer Products are not designed to or utilized for the purpose of sending commercial electronic messages to any GitHub customers, agents or End Users without their consent; (vi) it has all right, power and authority to grant the licenses granted to GitHub and End Users herein; (vii) it acknowledges GitHub’s right to charge transaction and/or listing fees as provided in Section 6 herein; any images and text that are used to market the Developer Products or that Developer has uploaded to the Marketplace are truthful, accurate and not intended to mislead or confuse the End User. -**5.4** DISCLAIMER OF WARRANTIES. ALL ASPECTS OF THE MARKETPLACE AND THE GITHUB API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND GITHUB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. DEVELOPER ACKNOWLEDGES THAT GITHUB DOES NOT WARRANT THAT THE MARKETPLACE OR GITHUB API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES, MALWARE, OR WORMS (OTHERWISE KNOWN AS COMPUTER CODE OR OTHER TECHNOLOGY SPECIFICALLY DESIGNED TO DISRUPT, DISABLE, OR HARM YOUR SOFTWARE, HARDWARE, COMPUTER SYSTEM, OR NETWORK), AND NO INFORMATION OR ADVICE OBTAINED BY DEVELOPER FROM GITHUB OR THROUGH THE MARKETPLACE OR GITHUB API SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. GITHUB IS NOT RESPONSIBLE FOR AND SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY UNAUTHORIZED USE OF PRODUCTS OUTSIDE THE MARKETPLACE. +**5.4** DISCLAIMER OF WARRANTIES. ALL ASPECTS OF THE MARKETPLACE AND THE GITHUB API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND GITHUB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. DEVELOPER ACKNOWLEDGES THAT GITHUB DOES NOT WARRANT THAT THE MARKETPLACE OR GITHUB API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES, MALWARE, OR WORMS (OTHERWISE KNOWN AS COMPUTER CODE OR OTHER TECHNOLOGY SPECIFICALLY DESIGNED TO DISRUPT, DISABLE, OR HARM YOUR SOFTWARE, HARDWARE, COMPUTER SYSTEM, OR NETWORK), AND NO INFORMATION OR ADVICE OBTAINED BY DEVELOPER FROM GITHUB OR THROUGH THE MARKETPLACE OR GITHUB API SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. GITHUB IS NOT RESPONSIBLE FOR AND SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY UNAUTHORIZED USE OF DEVELOPER PRODUCTS OUTSIDE THE MARKETPLACE. ### 6. PRICING AND PAYMENT TERMS -**6.1** GitHub will be the merchant of record for Products purchased by End Users via Marketplace. +**6.1** GitHub will be the merchant of record for Developer Products purchased by End Users via Marketplace. -**6.2** GitHub will only list Verified Developer Applications for payment. Prices for Marketplace Listings of such Verified Developer Applications will be set in US Dollars (USD). Developer has complete control over setting pricing for each Listing, and once set, such pricing cannot be changed. You may retire a pricing plan for an existing Listing and add a new pricing plan for such Listing, provided that such new pricing plan shall not negatively impact existing End Users. The prices you set for Products will determine the amount of payment you will receive. GitHub will remit 75% of the sale price in USD without reduction for Taxes except for any withholding taxes that are required under applicable law. The remaining 25% of the sales price will be allotted to and retained by GitHub. At the end of each month and upon reaching a minimum value of $500 USD, GitHub will remit your share of payments. +**6.2** Prices for Marketplace Listings of Developer Applications will be set in US Dollars (USD). Developer has complete control over setting pricing for each Listing, and once set, such pricing cannot be changed. You may retire a pricing plan for an existing Listing and add a new pricing plan for such Listing, provided that such new pricing plan shall not negatively impact existing End Users. The prices you set for Developer Products will determine the amount of payment you will receive. GitHub will remit 75% of the sale price in USD without reduction for Taxes except for any withholding taxes that are required under applicable law. The remaining 25% of the sales price will be allotted to and retained by GitHub. At the end of each month and upon reaching a minimum value of $500 USD, GitHub will remit your share of payments. **6.3** Refund Requirements. You will be responsible for specifying the terms and conditions regarding refunds to your End Users. In no event shall GitHub be responsible for providing any support for refunds, nor shall GitHub be liable for payment of any refund. -**6.4** You Support Your Product. You will be solely responsible for support and maintenance of your Products and any complaints about your Products. Your support contact information will be displayed in each application detail page and made available to users for customer support purposes. Failure to provide adequate support for your Products may result in less prominent product exposure, or in some cases removal from Marketplace or anywhere else on GitHub.com where previously purchased or downloaded Products are stored on behalf of users. +**6.4** You Support Your Developer Product. You will be solely responsible for support and maintenance of your Developer Products and any complaints about your Developer Products. Your support contact information will be displayed in each application detail page and made available to users for customer support purposes. Failure to provide adequate support for your Developer Products may result in less prominent product exposure, or in some cases removal from Marketplace or anywhere else on GitHub.com where previously purchased or downloaded Developer Products are stored on behalf of users. ### 7. OWNERSHIP @@ -173,13 +166,13 @@ UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEG **10.3** GitHub may terminate this Agreement at any time if (a) you have breached any provision of this Agreement or (b) GitHub is required to do so by law. -**10.4** Effects of Termination by Developer. Upon receiving forty-five (45) days’ advanced written notice of termination from Developer, Developer will be disabled from taking on new customers via Marketplace. Any outstanding fees shall be remitted upon termination and removal of the Product from Marketplace. If termination is initiated as a result of a GitHub modication to these terms (Section 11), the terms in effect immediately prior to such modification shall govern for the duration of the 45-day notice period until the date of actual termination. +**10.4** Effects of Termination by Developer. Upon receiving forty-five (45) days’ advanced written notice of termination from Developer, Developer will be disabled from taking on new customers via Marketplace. Any outstanding fees shall be remitted upon termination and removal of the Developer Product from Marketplace. If termination is initiated as a result of a GitHub modication to these terms (Section 11), the terms in effect immediately prior to such modification shall govern for the duration of the 45-day notice period until the date of actual termination. **10.5** The obligations in Sections 2, 3, 4, 5, 8, 9 and 12-18 will survive any expiration or termination of this Agreement. ### 11. MODIFICATION -Developer acknowledges and agrees that GitHub may modify this Agreement, Marketplace, the GitHub API, the General API Policies, GitHub Privacy Policy, the GitHub Developer Program ToS, and the GitHub.com ToS from time to time (a “Modification”). All Modifications shall be communicated through Marketplace, the GitHub website at www.GitHub.com or through a form of direct communication from GitHub to Developer. Developer further acknowledges and agrees that such Modifications may be implemented at any time and without any notice to Developer. Developer shall, within forty-five (45) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such modification(s) by implementing and using the most current version of the GitHub API in the most current version of the Products and making any changes to Products that may be required as a result of such Modification(s). Developer acknowledges that a Modification may have an adverse effect on Products, including but not limited to changing the manner in which applications communicate with the GitHub API. GitHub shall have no liability of any kind to Developer or any End User with respect to such Modifications or any adverse effects resulting from such Modifications. Developer’s continued access to or use of Marketplace or the GitHub API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue. +Developer acknowledges and agrees that GitHub may modify this Agreement, Marketplace, the GitHub API, the General API Policies, GitHub Privacy Policy, the GitHub Developer Program ToS, and the GitHub.com ToS from time to time (a “Modification”). All Modifications shall be communicated through Marketplace, the GitHub website at www.GitHub.com or through a form of direct communication from GitHub to Developer. Developer further acknowledges and agrees that such Modifications may be implemented at any time and without any notice to Developer. Developer shall, within forty-five (45) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such modification(s) by implementing and using the most current version of the GitHub API in the most current version of the Developer Products and making any changes to Developer Products that may be required as a result of such Modification(s). Developer acknowledges that a Modification may have an adverse effect on Developer Products, including but not limited to changing the manner in which applications communicate with the GitHub API. GitHub shall have no liability of any kind to Developer or any End User with respect to such Modifications or any adverse effects resulting from such Modifications. Developer’s continued access to or use of Marketplace or the GitHub API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue. ### 12. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS @@ -208,7 +201,7 @@ This Agreement shall be governed by the laws of the State of California without DEVELOPER PRODUCTS DISTRIBUTED VIA MARKETPLACE MAY BE SUBJECT TO EXPORT CONTROLS OR RESTRICTIONS BY THE UNITED STATES OR OTHER COUNTRIES OR TERRITORIES. DEVELOPER AGREES TO COMPLY WITH ALL APPLICABLE US AND INTERNATIONAL EXPORT LAWS AND REGULATIONS. THESE LAWS MAY INCLUDE RESTRICTIONS ON DESTINATIONS, CONTENT AND/OR END USERS. ### 18. USAGE DATA -In order to operate and improve Marketplace, GitHub may collect Usage Data from Marketplace and GitHub API or anywhere previously purchased or downloaded Products are stored on behalf of End Users by GitHub. The Usage Data will be maintained in accordance with GitHub’s then in effect privacy policies. Limited Usage Data may be available for use by Developer in GitHub’s sole discretion. +In order to operate and improve Marketplace, GitHub may collect Usage Data from Marketplace and GitHub API or anywhere previously purchased or downloaded Developer Products are stored on behalf of End Users by GitHub. The Usage Data will be maintained in accordance with GitHub’s then in effect privacy policies. Limited Usage Data may be available for use by Developer in GitHub’s sole discretion. # Addendum1: Data Protection Addendum