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JiHu GitLab Subscription Agreement

Published/Updated on: July 29, 2022

This Agreement is entered into by and between GitLab Information Technology (Hubei) Co., Ltd. (“JiHu (GitLab)”), its Affiliates or its designated third parties and the individual or entity (the “Customer” or “you”) executing or electronically accepting this Agreement or any Order Form that references this Agreement (the parties to this Agreement are referred to individually as a “Party” and collectively as the “Parties”). This Agreement shall come into force at the earliest of (1) the Customer clicking “Agree” or “Yes” to the terms of this Agreement to gain initial access to, or use of, the JiHu GitLab Services (as defined below), (2) JiHu (GitLab) and the Customer agreeing to an Order Form referencing this Agreement, or (3) the Customer being given access to, or use of, the JiHu GitLab Services (the “Effective Date”).

Please be sure to carefully read and fully understand all the contents of this Agreement, especially the terms on exemption or limitation of liability which may be highlighted in bold and underlined to draw your attention. By opting to stamp, clicking on the web page for confirmation of, opting in through the web page, downloading installation package of JiHu GitLab Services and click Install or Agree to Install, or otherwise accepting, this Agreement, whether expressly or impliedly, or using the JiHu GitLab Services (as defined below) whatsoever, you completely and fully agree to and accept this Agreement (as modified and updated by JiHu (GitLab), including other relevant terms and conditions made by JiHu (GitLab) from time to time), and are willing to be bound hereby. If you do not agree with this Agreement, please do not use the JiHu GitLab Services.

Individual Signing on Behalf of Enterprise: If the individual accepting this Agreement is accepting it on behalf of an enterprise, such individual represents that he/she has obtained the authorization to so accept and has the authority to bind such enterprise and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such enterprise and its Affiliates.

Individual Not Authorized to Sign on Behalf of Enterprise: If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the JiHu GitLab Services.

Individual Signing on Behalf of Individual But Using An Enterprise Email: If the individual accepting this Agreement is accepting it on his or her own behalf but using an enterprise email address to do so, such individual acknowledges and agrees that use of such enterprise email address will establish a JiHu GitLab account that will be associated with the applicable enterprise, and can and will be transferred entirely (both control over and data/information within the account) to such enterprise upon the enterprise’s request without notice or liability to the individual.

1. Definition

1.1. “Acceptance” of an Order Form shall occur at the earliest of the following: (1) execution of the Order Form, (2) reference to the Order Form Quote No. within a Purchase Order or similar document, or (c) actual use of the JiHu GitLab Services.

1.2. “Add-on Users” refer to additional Users in excess of those that have been purchased under a Subscription via an executed Order Form or web portal.

1.3. “Affiliate” refers to, in respect of a party, an entity controlling, controlled by, or under common control with, such party. “Control” means having directly or indirectly the power to direct or cause others to direct the business, affairs, management or decisions of an entity, whether through ownership of equity, voting rights or voting securities, or as trustee or executor, or under contract, agreement arrangement, trust arrangement or otherwise, including directly or indirectly (1) owning fifty percent (50%) or more of the issued and outstanding shares or equity of the entity, (2) owning fifty percent (50%) or more of the voting rights of the entity, or (3) having the right to appoint a majority of the members of the board of directors or similar management organizations of the entity. “Controlled” has the corresponding meaning as above.

1.4. “Authorized Partner” refers to an agent, authorized seller, reseller or distributor authorized to sell the JiHu GitLab Services, a third-party channel or platform with which JiHu (GitLab) cooperates, and other third-party cooperative entities authorized by JiHu (GitLab) in a reasonable and legal manner.

1.5. “Community Edition Software” refers to the publicly available, community-developed open-source software and components of the JiHu GitLab Services made available to User free of charge. Community Edition Software is provided as Free Services (as defined below).

1.6. “Confidential Information” refers to all technical, commercial, legal, administrative, financial and other information provided by either Party to the other Party, or the technical and commercial information obtained by either Party from the other Party during the execution and performance of this Agreement, the contents of this Agreement and all its annexes, as well as other information which is expressly identified by either Party to be Confidential Information or which, by its nature, should or could reasonably be expected to be considered confidential.

1.7. “Contractors” refer to third parties that the Customer has engaged to manage, or otherwise use the JiHu GitLab Services, solely on behalf of the Customer.

1.8. “Customer Content” refers to all software, information, content and data provided by or on behalf of the Customer, or made available or otherwise distributed through the use of the JiHu GitLab Services to JiHu (GitLab) (or its Affiliates, or its designated third parties providing the JiHu GitLab Services).

1.9. “Customer Support” refers to the technical support of the JiHu GitLab Services provided by JiHu (GitLab) or its designated third parties.

1.10. “Enterprise” refers to the organization, company, corporation and/or other type of entity which procures the JiHu GitLab Services to be used on its behalf pursuant to the terms of this Agreement.

1.11. “Fees” refer to the fees set forth within the Order Form, or, fees payable by the Customer for purchasing the JiHu GitLab Services through the JiHu GitLab Website.

1.12. “Free Services” refer to a feature-limited version of the JiHu GitLab Services provided to a Customer, User, end user, Authorized Partner (including the Enterprise served thereby), or any other third party at no (or a greatly reduced) cost.

1.13. “Individual” refers to a natural person who uses the JiHu GitLab Services on his/her own behalf. An Individual using the GitLab Services must be over eighteen (18) years old.

1.14. “Intellectual Property Rights” refer to the aggregate of the intellectual property rights currently owned or subsequently created or acquired by a Party (or an applicable third party) under the laws of China or other jurisdictions in the world, including but not limited to (1) all trademarks, trademark applications, business names, trade names, product names, service marks and proprietary legends; (2) all classes or types of patents, including but not limited to invention, utility model and design patents, patent applications and disclosures; (3) all copyrights (including property rights and moral rights) of published and unpublished works, and all registrations and applications therefor; and (4) all inventions, know-how, trade secrets and Confidential Information and information of a technical or non-technical nature.

1.15. “JiHu GitLab Services” refer to products and services such as applications, Software, SaaS Services, technical services and course training made available by JiHu (GitLab) , its Affiliates or its designated third parties.

1.16. “JiHu GitLab Website” refers to the websites operated by JiHu (GitLab), its Affiliates, or its designated third parties at present and/or in the future, including but not limited to gitlab.cn, jihulab.com and their subdomains, as may be updated subsequently on an on-going basis, other JiHu (GitLab) -related websites so expressly specified by JiHu (GitLab) as applicable on its websites, as well as all content, services and documentations provided on the aforementioned websites.

1.17. “Order Form” refers to a transaction document agreed to between the Parties (which can be in such forms as contract, agreement or order), stating the purchased JiHu GitLab Services, terms of use thereof, price and other applicable transaction details.

1.18. “People’s Republic of China” or “China” refers to, solely for the purpose hereof, the mainland of the People’s Republic of China, excluding Hong Kong (China), Macao (China) and Taiwan (China) (unless otherwise specified in the terms hereof).

1.19. “Purchase Order” refers to the purchase-related document or the like submitted by the Customer and/or its authorized partners evidencing the Customer’s internal approval and/or purchase record. Terms and conditions contained in a Purchase Order but not specified in this Agreement or the applicable Order Form shall be null and void.

1.20. “SaaS Services” refer to the software as a service or similar related services that are constantly updated and progressed presented on the JiHu GitLab Website and provided to Customers through Subscription.

1.21. “Software” refers to subscription software products provided by JiHu (GitLab) or its Affiliates, including subscription software installers and license codes.

1.22. “Subscription” refers to the products, services, supports and functions applicable to the JiHu GitLab Services provided. The Subscription shall be provided subject to the product information published (as amended from time to time) on the JiHu GitLab Website.

1.23. “Subscription Start Date” is, unless otherwise agreed to in writing: (1) if purchasing directly from JiHu (GitLab), (a) the subscription start date stated on an Order Form, (b) the date on which the Customer is given access to the GitLab Services, or (c) the date of transaction via the JiHu GitLab Website, whichever is the earliest; (2) if purchasing through an Authorized Partner, (a) the date on which the Authorized Partner enters into a relevant Order Form with JiHu (GitLab), its Affiliates or its designated third parties for rendering of the JiHu GitLab Services to the Customer, or (b) the date on which JiHu (GitLab), its Affiliates or its designated third parties send the license code of the JiHu GitLab Services purchased by the Customer to the Customer, whichever is earlier.

1.24. “Subscription Term” shall commence on the Subscription Start Date and continue for twelve (12) months, unless otherwise agreed in an Order Form.

1.25. “True-up Users” refer to Users by the number of whom the maximum number of Users exceeds the number of effective subscribers paid by the Customer to JiHu (GitLab) within a certain Subscription Term.

1.26. “User” refers to a single Individual, employee, Contractor, or other third-party individual authorized by the Customer in accordance with this Agreement who is able to access or use the JiHu GitLab Services purchased by the Customer under a Subscription, regardless of whether the User actually accesses or the frequency with which the User accesses the JiHu GitLab Services. A User who is a natural person must be over eighteen (18) years old. A User who is a legal person or other entity shall have the legal capacity to execute and perform this Agreement.

2. Scope of Agreement

2.1. This Agreement is to enable JiHu (GitLab) to provide you with the JiHu GitLab Services and related Customer Support services in accordance with the effective terms. The JiHu GitLab Services provided by JiHu (GitLab) are subject to the information shown on the page of the JiHu GitLab Website.

2.2. This Agreement also covers, among others, relevant agreements, business rules, policies, announcements and statements that JiHu (GitLab) may continuously publish concerning the JiHu GitLab Services, including but not limited to JiHu GitLab Privacy Policy, JiHu GitLab Website Terms of Use, JiHu GitLab Cookies Policy, Jihu GitLab User Service Agreement, Jihu GitLab Open Source Program Service Agreement and Jihu GitLab Legal Notice located at the GitLab Website and https://gitlab.cn/terms (together with this Agreement, collectively, “JiHu GitLab Website Agreements”), which shall, once officially released, form an integral part of this Agreement binding upon you. Certain JiHu GitLab Services provided to you may be subject to separate agreements, terms, and relevant business rules, etc. (collectively, the “Separate Agreements”). By accepting any of the foregoing JiHu GitLab Website Agreements and/or Separate Agreements, you accept this Agreement in its entirety. By accepting this Agreement, you accept the foregoing JiHu GitLab Website Agreements and Separate Agreements.

3. Ordering Process

3.1. This Agreement applies to the JiHu GitLab Services that the Customer is purchased directly from JiHu (GitLab), any of its Affiliate, its designated third party or an Authorized Partner. For the avoidance of doubt, in the event the Customer purchases the same from an Authorized Partner, JiHu (GitLab) shall have no obligations to the Customer beyond his Agreement unless otherwise agreed to in writing between the Customer and JiHu (GitLab).

3.2. Unless otherwise agreed by the Customer and JiHu (GitLab) in writing, the terms of this Agreement shall govern any and all use of the JiHu GitLab Services. Purchases of the JiHu GitLab Services may take place by:

3.3. JiHu (GitLab) and the Customer acknowledge and agree that Free Services may: (i) be modified, adjusted and/or updated without notice, and (ii) be limited in function, features, maintenance and support, etc., or contain other limitations not present in the paid JiHu GitLab Services.

4. Term and Termination

4.1. This Agreement shall come into force from the Effective Date and continue until it is terminated in accordance with this Article 4 or other provisions hereof.

4.2. Unless either Party gives a notice of its intention to renewal prior to the expiration of the current Subscription Term and obtains the written consent of the other Party, this Agreement shall terminate on the expiration date of the current Subscription Term (except otherwise specified herein). Subscriptions must be used during the Subscription Term and any unused Subscriptions will expire upon the end of Subscription Term.

4.3. Either Party may terminate this Agreement and any Order Form executed between the Parties under any of the following circumstances:

4.4. To the extent the Customer breaches any provisions of Article 6 (Payment of Fees), JiHu (GitLab) may, at its sole discretion, suspend delivering Subscriptions or the JiHu GitLab Services until the breach is remedied, or terminate this Agreement and any Order Form executed between the Parties outright by notifying the Customer in writing.

4.5. Unless otherwise stated herein, termination of this Agreement shall not affect any current Subscriptions for which the Customer has paid in full and this Agreement shall remain in force and in effect with respect to such Subscriptions until the expiration of the then-current Subscription Term. For the avoidance of doubt, in no event will termination hereof relieve the Customer of its obligation to pay any Fees due to JiHu (GitLab)incurred prior to the effective date of the termination.

5. Rights and Responsibilities of the Customer

5.1. To use the JiHu GitLab Service, the Customer may need to create in batch or import multiple JiHu GitLab accounts, complete the real-name authentication for the JiHu GitLab accounts, and migrate the data and information stored on the third-party platforms to the JiHu GitLab Services (“Customer Data Migration”). JiHu (GitLab) or its Affiliates will assist the Customer in completing the Customer Data Migration. The Customer understands and agrees that by agreeing to all or part of the Customer Data Migration conducted by JiHu (GitLab) or its Affiliates, and/or starting to use the JiHu GitLab Services after completion of the Customer Data Migration, the Customer acknowledges and agrees to the JiHu GitLab Website Agreements (including without limitation the Jihu GitLab Privacy Policy) and other applicable Separate Agreements, and also agrees and authorizes JiHu (GitLab) or its Affiliates to conduct such operations as Customer Data Migration and account creation, including authorizing JiHu (GitLab) or its Affiliates to obtain and use necessary personal information (including but not limited to email addresses, user names, mobile phone numbers, etc.) of relevant personnel for the purpose of Customer Data Migration. The Customer shall provide JiHu (GitLab) or its Affiliates with personal information of relevant personnel in a truthful and accurate manner to ensure that the real name authentication can be completed, and the creation and activation of GitLab accounts and the access to and use of JiHu GitLab Services comply with applicable laws and regulations.

5.2. The Customer will not, and will not permit any third party, to:

5.3. Notwithstanding the foregoing, the Customer may use the JiHu GitLab Services for benchmark testing or comparative analysis to the extent permitted by law. The Customer shall comply with all applicable data privacy and security laws and regulations, and shall have appropriate technological, administrative, and physical controls in place to ensure such compliance.

5.4. JiHu (GitLab) shall have the right to verify electronically or otherwise, and generate reports related to the Customer’s installation of, access to, and use of the JiHu GitLab Services, etc., to ensure compliance with the provisions of this Agreement. During the term of this Agreement and within three years thereafter, the Customer shall properly keep all bills, records, procedures, corresponding, receipts, vouchers and documents (the “Customer Records”) formed under this Agreement and the applicable Order Forms during the performance hereof, including but not limited to the orders, invoices, bank remittance slips in connection with sales of the JiHu GitLab Services by JiHu (GitLab) or its Affiliates. JiHu (GitLab) may, by giving a thirty (30) days’ prior written notice to the Customer, hire an independent auditor to audit the Customer Records during the Customer’s normal business hours, to verify the expenses with respect to the use of the JiHu GitLab Services hereunder. The Customer shall, if the audit reveals underpayment, make up the deficiency promptly, and payi other relevant fees and indemnifications according to Articles 6 and 10.2 hereof. The audit fees shall be borne by the Customer in case of an underpayment by over 5% is found upon the audit on the part of the Customer.

5.5. The Customer shall:

5.6. Subject to this Agreement and the applicable Order Form, unless otherwise agreed by the Parties, JiHu (GitLab) will provide the Customer Support to the Customer for the Subscriptions (except for the Subscriptions for Free Services), during the Subscription Term, at no additional cost. Details regarding the Customer Support can be found at https://gitlab.cn/support/#contact-support, as updated from time to time.

5.7. The Customer acknowledges and agrees that: (1) account names for accessing the JiHu GitLab Services are administered by JiHu (GitLab) on a “first come, first serve” basis; (2) intentional squatting, purchasing, soliciting, or selling of an account name is prohibited; and (3) JiHu (GitLab) reserves the right to remove, rename, or close idle accounts at its discretion.

5.8. JiHu (GitLab) may, in case it finds or receives a report or complaint from others that the Customer has violated the above provisions of this Article 5, take measures as it deems appropriate, including but not limited to immediately terminating the services and this Agreement, suspending the services and/or deleting the relevant information. Insofar as JiHu (GitLab) terminates or suspends this Agreement and/or services as a result thereof, no Fees will be refunded and no liability shall be borne by JiHu (GitLab) therefor.

6. Payment of Fees

6.1. This Article 6 applies only to the JiHu GitLab Services that are purchased directly from JiHu (GitLab), including the JiHu GitLab Services purchased through the JiHu GitLab Website or under Order Forms executed with the JiHu (GitLab), its Affiliates or its designated third parties and the JiHu GitLab Services procured through Authorized Partners (unless otherwise agreed in writing).

6.2. All Fees for purchasing the JiHu GitLab Services through the online website shall be immediately due and paid upon Subscription.

6.3. The Order Form with JiHu (GitLab) for purchasing the JiHu GitLab Services shall: (1) reference this Agreement; (2) state the Subscription Terms and Subscriptions; and (3) state the Fees due for the applicable Subscriptions.

6.4. All Fees under this Agreement and an applicable Order Form are not subject to any deduction or offsets. All payments shall be made in accordance with the payment details stated within the applicable Order Form. Unless otherwise expressly agreed by the Parties, all Fees paid or due hereunder (including prepaid amounts) are non-refundable, whether this Agreement is terminated in accordance with Article 4 herein or otherwise.

6.5. For Software, after the Customer pays the Subscription Fees in full, JiHu (GitLab) will deliver the services to the Customer by sending the license code to the Customer’s designated email address. In case the Customer fails to actively activate upon receipt of the license code sent by JiHu (GitLab), such license code will be automatically activated 15 days after the date of delivery.

6.6. For SaaS Services, after the Customer pays the Subscription Fees in full, JiHu (GitLab) will deliver the services to the Customer by rendering corresponding subscription privileges to specific groups designated by the Customer.

6.7. With respect to a Customer with a Subscription Term in excess of twelve (12) months (including Customer under renewal), at the end of each annual term (i.e., every twelve (12) months after the Subscription Start Date, the same below), JiHu (GitLab) will: (1) apply the True-Up Rule, and (2) (i) in respect of a Software, provide a new license code (as applicable), or (ii) in respect of SaaS Services, continue the rendering of subscription privileges to specified groups designated by the Customer (as applicable) (the “License Extension”).

6.8. True-Up Rule: During the Customer’s use of the JiHu GitLab Services, the system will record the maximum number of Users within the previous annual term (the system periodically scans for actual Users). At the end of the annual term, if the maximum number of actual Users during the previous annual term exceeds the number of Users that the Customer has subscribed and fully-paid for (“Subscribed Users”), the Customer will need to pay for the excess number of Users in the previous annual term before the License Extension. The exceeded users over Subscribed Users are “True-up Users”. This number of True-up Users will be charged at the time of License Extension for the subscription Fees for the whole and entire annual term (“True-up Rule”). For the purposes of clarity, if the number of total actual Users has not exceeded the number of Subscribed Users on any one day within previous annual term, True-up Rule will not apply. If the maximum number of actual Users according to the system scan records exceeds the number of Subscribed Users for one or more days in the previous annual term, even if the maximum number of actual Users exceeds the number of Subscribed Users for only one day, the True-up Rule shall apply.

6.9. Add-on. The Partner may choose to subscribe for Add-on Users to increase the number of permissible users for the current Subscription by paying in advance. For such Add-on Users, the fees payable are as follows:

7. Confidential Information

7.1. Each Party hereto shall be obliged to keep the Confidential Information of the other Party it receives hereunder confidential.

7.2. The Parties shall abide by the following during the term, and after the termination, of this Agreement:

7.3. The Parties agree that Article 7.2 will not apply with respect to the information which:

7.4. Either Party shall, upon aware of any inadvertent disclosure of Confidential Information, immediately inform the other Party and take reasonable countermeasures upon mutual negotiation. Subject to the provisions of Article 11, if the Confidential Information is leaked due to willful act or negligence of a Party, the Party shall be liable for all economic losses caused to the other Party thereby, and shall take prompt measures as necessary to mitigate such losses at its own costs and liabilities; the Party shall, in case of the failure to take necessary measures in time resulting in further losses, be liable for the further losses incurred thereby.

7.5. The receiving Party may disclose Confidential Information pursuant to any judicial or governmental order, provided that the receiving Party gives the disclosing Party, when permissible by applicable laws and regulations, reasonable prior notice of such disclosure to allow the disclosing Party to contest such order.

7.6. JiHu (GitLab) may collect data with respect to the performance of and the Customer’s usage of JiHu GitLab Services, and report on the overall response rate and other overall measurements. Notwithstanding the foregoing, JiHu (GitLab) will not identify the Customer to any third party as the source of any such data unless otherwise specified in the JiHu GitLab Privacy Policy or consented to by the Customer in writing in advance.

7.7. This Article 7 shall survive the modification, rescission or termination of this Agreement and shall be binding upon the Parties thereafter.

8. Intellectual Property Rights

8.1. Subject to the terms of this Agreement, JiHu (GitLab) hereby grants to the Customer and its Affiliates specified in an Order Form (if any) a limited, non-exclusive, non-transferable, non-sublicensable license allowing Users of the Customer and its such Affiliates (if any) to use, reproduce, modify the JiHu GitLab Services and prepare derivative works thereof, and display the software code in the Software, at the tier level selected by the Customer or as set forth in an effective Order Form, solely for: (i) the internal use by the Customer and/or its Affiliates specified in the Order Form (if any) in connection with the development of their own software; and (ii) the number of Subscribed Users for which the Customer has paid, during the Subscription Term.

8.2. All the JiHu GitLab Services may only be used, copied, modified, displayed and distributed in full compliance with this Agreement, and with a valid Subscription for the Subscribed Users. The Customer shall not, and shall ensure its Users acknowledge and agree not to attempt to obtain or use any underlying Intellectual Property Right of Jihu GitLab Services by dismantling, compiling, assembling, reverse engineering or decoding, nor shall Customer in any way or by any manner obtain or use any unauthorized products and/or services, or enable its Users to do so. If the Customer fails to fulfill its obligations under, or its Users violate this Section 8.2, it shall indemnify all loss and expenses incurred to JiHu (GitLab), its Affiliates or its designated third parties (if applicable) related thereto, including but not limited to attorney’s fees and litigation expenses. In the event of Customer’s obtainment or use of the JiHu GitLab Services or any products and/or services with the same or similar names of JiHu GitLab Services from any unauthorized third parties, JiHu (GitLab) is not responsible for the use of any such products and/or services, nor shall it be held liable for any loss and damage incurred to the Customer and its Users in acquiring and using such products and/or services.

8.3. Any modifications, suggestions, ideas, enhancement requests, feedback, or other recommendations provided by the Customer, its Affiliates, Users or any third party relating to the JiHu GitLab Services (“Feedback Materials”) are hereby irrevocably transferred to JiHu (GitLab) free of charge. For the avoidance of doubt, Feedback Materials do not include Confidential Information or prior Intellectual Property Rights owned by the Customer. To the extent the Customer, its Affiliates, Users or any third parties are prevented from transferring the rights, ownership or interests in the Feedback Materials to JiHu (GitLab) by the operation of applicable laws, they hereby grant JiHu (GitLab) an exclusive, royalty-free, transferable, irrevocable and worldwide license (including multi-level sublicense rights) for JiHu (GitLab) to exercise such rights under this license.

8.4. Except as expressly stated in this Article 8, all rights, ownership, interests and Intellectual Property Rights related to the JiHU GitLab Services (including the JiHu GitLab Services modified by the Customer) shall remain with JiHu (GitLab) and its Affiliates or other third parties agreed in writing by JiHu (GitLab) (if applicable).

8.5. This Agreement does not transfer the ownership of any JiHu GitLab Services or the Intellectual Property Rights associated therewith to the Customer, its Affiliates or Users.

8.6. The Customer shall not, and shall cause the corresponding Users not to (1) use, disseminate, license or authorize the use of the trademarks and logos, etc., of JiHu (GitLab) (or its Affiliates, or licensors recognized in writing by JiHu (GitLab)) to the extent beyond this Agreement without the prior written consent of JiHu (GitLab), or expressly or implyhold itself as agency or representative of, or association with JiHu (GitLab) (or its Affiliates, or licensors recognized in writing by JiHu (GitLab)); (2) remove, alter or obscure any Intellectual Property Right statements, proprietary legends, trademark or service mark attributions, patent markings, license documents (open source license, etc.) of JiHu (GitLab) (or its Affiliates, or licensors recognized in writing by JiHu (GitLab)) or other indicia of their ownership or contribution to the JiHu GitLab Services.

8.7. The Customer shall, and shall cause the corresponding Users to, represent and warrant that: (1) it/they own(s) all the rights, ownership and interests in and to the Customer Content and related Intellectual Property Rights (including but not limited to being the sole owner or having obtained legal authorization from the owner thereof); (2) the Feedback Materials provided to JiHu (GitLab), the Customer Content stored and uploaded to the JiHu GitLab Services and provided to JiHu (GitLab), the use of the JiHu GitLab Services, and the results generated thereby will not infringe the rights and interests of any third party; and (3) during the subsequent use of the JiHu GitLab Services, it/they shall, in accordance with the relevant agreements, display in a reasonably prominent place on product the Intellectual Property Right statements, proprietary legends, trademark or service mark attributions, patent markings, license documents (open source license, etc.) of JiHu (GitLab) (or Affiliates of, or licensors recognized in writing by JiHu (GitLab)) or other indicia of their ownership or contribution to the JiHu GitLab Services.

8.8. Where any third-party contests against or complains about the Feedback Materials, the Customer Content, the use of JiHu GitLab Services or the results generated thereby, and the ownership to relevant Intellectual Property Rights involved in the use of JiHu GitLab Services by the Customer and its corresponding Users, the Customer shall be responsible for issuing relevant supporting materials and cooperating with JiHu (GitLab) in handling such complaints. If the Customer fails to present sufficient evidence to the contrary or to provide feedback within the time limit, JiHu (GitLab) shall have the right to take measures as it deems appropriate, including, without limitation, immediately terminating the JiHu GitLab Services and/or this Agreement, suspending the JiHu GitLab Services and/or removing the corresponding information. The Customer shall, in case JiHu (GitLab) is unable to contact the Customer due to its failure to update the contact information in time or provision of incorrect contact information, also be deemed to have failed to give feedback within the time limit. No Fees will be refunded, nor shall JiHu (GitLab) in any case be held liable should JiHu (GitLab) terminate or suspend the JiHu GitLab Services and/or this Agreement as a result of this Article 8.8.

9. Warranty

9.1. During the Subscription Term, the Customer represents and warrants that:

9.2. During the Subscription Term, JiHu (GitLab) represents and warrants that: (1) it has the authority to enter into this Agreement; and (2) the JiHu GitLab Services shall be provided by professionals in accordance with this Agreement.

9.3. Unless otherwise specified herein, the JiHu GitLab Services, the Confidential Information and any content related hereto shall be provided “AS IS”. JiHu (GitLab), as well as its Affiliates, designated third parties and recognized licensors disclaim any warranty, guarantee or representation, express or implied, with respect to the JiHu GitLab Services (including the content and other information thereof), concerning: the promptness, safety, accuracy, truthfulness and completeness, or absence from deficiency, procedural error, defect or security flaw; non-infringement upon the Intellectual Property Rights or other rights of any third party; merchantability and fitness for a particular purpose; having the characteristics and commercial value expected by the Customer; availability at any particular time or place; or compliance with any applicable law. In no event shall JiHu (GitLab), or its Affiliates, designated third parties or recognized licensors be liable for any risk or loss caused by the Customer downloading and/or using the documentation, information, content or other materials obtained from the JiHu GitLab Services.

10. Liability for Breach

10.1. Either Party breaching the representations and warranties or failing to perform any of its obligations hereunder shall indemnify the non-breaching Party for the losses suffered therefrom.

10.2. JiHu (GitLab) shall, if it delays in delivery of the JiHu GitLab Services under this Agreement or applicable Order Forms, pay liquidated damages at 3‰ of the Fees corresponding to the delayed part to the Customer for each day of delay or part thereof; provided that JiHu (GitLab) may be excused from such delay if attributable to any delay or failure by the Customer, in which event the performance period available to JiHu (GitLab) will be extended accordingly.

10.3. The Customer shall, in case of failure to pay the Fees due under this Agreement or applicable Order Forms, pay liquidated damages at 3 ‰ of the past due Fees to JiHu (GitLab) for each day of delay or part thereof; provided that the Customer may be excused from such delay if attributable to JiHu (GitLab) , in which event its performance period will be postponed accordingly.

10.4. Subject to the provisions of Article 11, where the liquidated damages are insufficient to make up for the actual damage suffered by the non-breaching Party, the breaching Party shall also make up the deficiency to the non-breaching Party.

10.5. Failure of the Customer to pay the Fees due under this Agreement and Order Forms shall entitle JiHu (GitLab) to exercise the rights conferred by Section 4.4hereof. JiHu (GitLab) will, insofar as it chooses to temporarily suspend the license to use the JiHu GitLab Services and relevant Customer Support, resume such license and the relevant Customer Support under this Agreement or the Order Forms after the Customer has fully paid the Fees together with the liquidated damages for the past due payment, JiHu (GitLab) shall not be held liable for actions taken in accordance therewith.

10.6. JiHu (GitLab) will hold the Customer harmless from any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging the JiHu GitLab Services (excluding Community Edition Software and Free Services) provided that JiHu GitLab is held by a court of competent jurisdiction to infringe or misappropriate such third party’s Intellectual Property Rights (“Customer Claim”). Subject to the provision of Article 11, JiHu (GitLab) will indemnify the Customer for any reasonable damages finally assumed and paid by Customer as a result of a Customer Claim, or for amounts paid by the Customer under a settlement approved in writing by GitLab, provided that the Customer: (1) promptly notifies JiHu (GitLab) in writing of the Customer Claim; (2) provides JiHu (GitLab) with all reasonable assistance, at JiHu (GitLab)’s expense to the extent reasonable; and (3) confers JiHu (GitLab) the sole control over defense and settlement thereof.

However, the foregoing obligations do not apply if: (1) the Customer Claim arises from the JiHu GitLab Services or any part thereof modified by the Customer, or at the Customer’s direction, after delivery by JiHu (GitLab); (2) the Customer Claim arises from the use or combination of the JiHu GitLab Services or any part thereof with other products, processes or materials not provided by JiHu (GitLab); (3) the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (4) the Customer Claim arises from software not created by JiHu (GitLab), or (5) the Customer Claim results from the Customer’s breach of this Agreement and/or applicable Order Forms. Notwithstanding the foregoing, in the event of a Customer Claim, JiHu (GitLab), at its discretion, reserves the rights to: (1) modify or adjust the JiHu GitLab Services to make them non-infringing provided there is no material loss of functionality; (2) settle such claim by procuring the right for the Customer to continue using the JiHu GitLab Services; or (3) if in JiHu (GitLab)’s reasonable opinion neither (1) or (2) are commercially feasible, terminate the license to the JiHu GitLab Services and this Agreement, and refund a pro-rata portion of the amount paid by the Customer for such JiHu GitLab Services as remain unused.

10.7. The Customer will defend JiHu (GitLab) and its Affiliates against any claim, demand, suit or proceeding made or brought against JiHu (GitLab) and its Affiliates by a third party: (1) alleging that any Customer Content or the Customer’s use of the Customer Content and/or services other than the JiHu GitLab Services with the JiHu GitLab Services infringes Intellectual Property Rights, or (2) arising from the Customer’s use of the JiHu GitLab Services in an unlawful manner or in violation of this Agreement, applicable Order Forms and/or applicable documentation (each a “JiHu GitLab Claim”). The Customer will indemnify JiHu (GitLab) and its Affiliates from any damages, reasonable attorneys’ fees and other expenses finally borne by JiHu (GitLab) and its Affiliates as a result of, or for any amounts paid by JiHu (GitLab) under a settlement approved in writing by the Customer of a JiHu GitLab Claim, provided JiHu (GitLab): (1) promptly notifies the Customer in writting notice of the JiHu GitLab Claim, (2) confers the Customer sole control over the defense and settlement of the JiHu GitLab Claim (except, for the avoidance of doubt, that the Customer may not settle any JiHu GitLab Claim unless it unconditionally releases GitLab of all liability), and (3) provides the Customer with all reasonable assistance, at the Customer’s expense. The above defense and indemnification obligations do not apply if a JiHu GitLab Claim arises from JiHu (GitLab)’s breach of this Agreement and/or applicable Order Forms.

11. Limitation of Liability

11.1. JiHu (GitLab), its Affiliates, its designated third party and its recognized licensors (if applicable) shall in no way be liable for any issues occurred from use of the JiHu GitLab Services caused by accidents, abuse, improper use and unauthorized modification.

11.2. To the maximum extent permitted by applicable laws, unless the Customer violates the provisions of Article 5 hereof, in no event will either Party and/or its Affiliates, its designated third party and recognized licensors be liable to the other Party for any indirect, punitive, incidental, special, consequential and secondary damages.

11.3. Subject to the provisions of Article 11.4, the accumulative liabilities (including but not limited to liquidated damages and other compensation liabilities and expenses) of JiHu (GitLab), its Affiliates, its designated third party and recognized licensors (if applicable) arising out of and/or in connection with this Agreement, whether based on contract, tort (including negligence or strict liability), or otherwise, will not exceed, in the aggregate, the total amount (excluding tax) paid by the Customer and/or its Affiliates (in case of the Customer directly purchasing the JiHu GitLab Services from JiHu (GitLab)) or Authorized Partners (in case of the Customer purchasing the JiHu GitLab Services through the Authorized Partners) to JiHu (GitLab) for the specific JiHu GitLab Services out of which the liabilities arose. The foregoing limitations will have no prejudice to the payment obligations of the Customer or its Affiliates under specific contracts or Order Forms.

11.4. JiHu (GitLab) , its Affiliates, its designated third party or recognized licensors shall not in any event be liable for any losses and damages caused by the Customer’s use of the Free Services, even if such losses and damages are foreseeable. The foregoing losses and damages include but are not limited to: (1) any direct, indirect, punitive, incidental, special, consequential and secondary damages; (2) costs of obtaining substitute products or services; and (3) interruption of use, loss or damage of data.

12. Force Majeure

12.1. Should any Party be directly prevented from performing this Agreement by, or is unable to perform this Agreement in accordance with provisions hereof due to, earthquake, typhoon, flood, fire, war, epidemic (infectious) diseases, changes in national laws and regulations, government intervention, material national policy adjustment and other unforeseeable force majeure events whose occurrence and consequences are unpreventable and insurmountable or unavoidable (“Force Majeure”), the Party may be exempted from relevant liabilities for breach of contract.

12.2. The affected Party shall, within seven (7) days after the occurrence of Force Majeure event, notify the other Party in writing, and shall, within fifteen (15) days after such event, provide details of the event and explain the reasons with valid supporting documents for the inability to perform all or part of, or the need to delay in performing, this Agreement. The Parties shall, through negotiation, decide whether to terminate this Agreement, partially exempt from the obligations hereunder or delay the performance hereof according to the extent of the Force Majeure’s impact on the performance of this Agreement. Where the Force Majeure event occurs during either Party’s delay in performing this Agreement, the Party shall not be exempted from its contractual obligations.

12.3. The Party affected by Force Majeure shall take reasonable actions and appropriate measures as far as possible to mitigate the impact of Force Majeure on the performance of this Agreement, provided that it shall, to the extent it fails to take appropriate measures to avoid greater losses, not claim exemption from or compensation for the losses that could have been avoided.

12.4. Except as expressly excused in this Article, the Parties will continue to perform their respective obligations hereunder during a Force Majeure event.

12.5. Notwithstanding the foregoing, COVID-19 shall in no event exempt or delay the Customer’s payment obligations under this Agreement and/or applicable Order Forms.

13. Security and Data Protection

13.1. The Customer shall ensure that it will, when collecting, processing, storing, transmitting, using, providing, disclosing and removing any and all information or data, including without limitation personal information, related to this Agreement (the “Customer Data”), comply with applicable data protection laws (the “Data Protection Laws”), including but not limited to having obtained all necessary authorizations and consents required for the processing of the Customer Data. Before any such collection, processing, storage, transmission, use, provision, disclosure and removal using the JiHu GitLab Services, the Customer has taken and maintained appropriate organizational, technical and security measures to prevent any unauthorized access to and disclosure, tampering and loss of the Customer Data. The Customer shall, upon noticing any violation of the Data Protection Laws related to the Customer Data, and occurrence or possible occurrence of data leakage, tampering and loss (“Security Event”), promptly notify JiHu (GitLab) thereof, and cooperate with JiHu (GitLab) in investigating such event and implementing any measures reasonably required.

13.2. The Customer shall be responsible for the integrity and confidentiality of its data stored in the JiHu GitLab Services. All losses and consequences caused by leakage, tampering and loss of the above data due to improper maintenance or confidentiality measures on the part of the Customer shall be borne by the Customer.

13.3. The Customer shall be responsible for the content of Customer Data processed in the use of the JiHu GitLab Services, and shall, in case the upload, download or other processing activities of the Customer Data are against the laws, regulations, national policies or this Agreement, be liable for all the outcomes and liabilities arising therefrom.

13.4. The Parties acknowledge and agree that, (1) the JiHu GitLab Services are not designed for the purposes of storing, processing, compiling or transmitting Sensitive Data (as defined below), and (2) without prior written consent of JiHu (GitLab), the Customer shall not, by using the JiHu GitLab Services or otherwise, provide JiHu (GitLab) with Sensitive Data beyond the circumstances for collection of personal information covered by the JiHu GitLab Privacy Policy. “Sensitive Data” means: (a) personal information, important data and core data prescribed by the Cybersecurity Law of the People’s Republic of China, the Data Security Law of the People’s Republic of China, the Personal Information Protection Law of the People’s Republic of China, the Civil Code of the People’s Republic of China and other applicable laws, regulations as well as any subsequent legislation on personal information and important data protection; (b) any information and data similar to the above protected by laws and regulations of China and other applicable jurisdictions; and (c) any unlawful content and data restricted and prohibited by relevant laws and regulations of China. The Customer further agrees that the JiHu GitLab Services and any functions thereof are not intended to fulfill any obligations under any of the above laws and regulations on Sensitive Data. JiHu (GitLab) shall bear no liability for the collection or processing of any Sensitive Data by the Customer using the JiHu GitLab Services to the extent beyond the circumstances for collection of personal information covered by the JiHu GitLab Privacy Policy and without the written consent of JiHu (GitLab).

14. Anti-corruption

14.1. The Customer acknowledges and undertakes that it did not, shall not and shall not allow any of its subsidiaries or Affiliates, or any of their respective directors, officers, managers, employees, independent contractors, representatives, agents, or any other person acting in the name or on behalf of the foregoing (each, an “Affiliate of the Customer” and collectively, the “Affiliates of the Customer”) to offer, make, promise to make or authorize the making of any payment or give anything of value to any person (whether directly or indirectly) in violation of the Criminal Law of the People’s Republic of China, the Anti Unfair Competition Law of the People’s Republic of China, the Interim Provisions on Banning Commercial Bribery and other applicable anti-corruption laws, regulations and judicial interpretations of China (collectively, the “Anti-corruption Laws of China”), the US Foreign Corrupt Practices Act as amended (the “FCPA”), the UK Bribery Act as amended (the “Bribery Act”), and any applicable anti-bribery or anti-corruption laws.

14.2. The Customer undertakes that it will, and will cause its Affiliates to, stop all relevant activities and take measures to rectify the acts thereof against the Anti-corruption Laws of China, the FCPA, the Bribery Act or any other applicable anti-bribery or anti-corruption laws, as well as adopt internal control systems (including, without limitation, accounting systems, procurement systems and billing systems) to ensure that the operations of it and its Affiliates comply therewith.

15. Export Control

The Customer shall comply with applicable export control laws, including but not limited to the export control laws and regulations of the United States, Europe and China with respect to the technology contained in the JiHu GitLab Services.

16. Services Change or Suspension

16.1. For the sake of security and function consistency of the JiHu GitLab Services, JiHu (GitLab) may make immaterial adjustments, upgrades, optimizations, improvements renames and other immaterial changes, to all or part of the JiHu GitLab Services without prior notice to the Customer.

16.2. In order to provide better services, JiHu (GitLab) may regularly or irregularly overhaul, maintain, upgrade and optimize the website or related equipment, systems and software (collectively, “Routine Maintenance”), and none of JiHu (GitLab), its Affiliates, its designated third party and its recognized licensors (if applicable) shall be liable to the Customer for interruption or suspension of the JiHu GitLab Services within a reasonable time as a result of the Routine Maintenance, provided, however, that JiHu GitLab shall notify the Customer of the Routine Maintenance at least twenty-four (24) hours in advance.

16.3. JiHu (GitLab) may suspend or terminate part or all of the JiHu GitLab Services or make material adjustments (including but not limited to the cessation, material updates and integration of the JiHu GitLab Services) according to its own operation arrangements, provided, however, that GitLab shall give an at least thirty (30) days’ prior notice to the Customer and such adjustment shall apply to all Customers. If the Customer does not cooperate in making such material adjustments, or JiHu (GitLab) is unable to contact the Customer in this regard, the consequences arising therefrom shall be borne by the Customer.

16.4. GitLab may suspend or discontinue all or part of the JiHu GitLab Services without prior notice for any of the following reasons that:

16.5. JiHu (GitLab), its Affiliates, its designated third party and its recognized licensors (if applicable) shall in no way be liable for any loss or damage incurred by the Customer from any measures taken by JiHu (GitLab) under this Article 16.

17. Modification of this Agreement

JiHu (GitLab) shall have the right to modify this Agreement and service rules as necessary (including formulating and issuing other policies, rules, announcements and statements from time to time) in accordance with laws and regulations, and will, upon the modification, publish the up-to-date version of this Agreement on the JiHu GitLab Website. The updated agreement will supersede the original agreement, with effect as of the time of publication. Customers can get access to the latest terms and conditions of this Agreement on the JiHu GitLab Website. By continuing the use of the JiHu GitLab Services after modification of this Agreement, the Customer accepts the modified agreement.

18. Notice

18.1. The Customer shall ensure and maintain the validity of its information (including but not limited to the telephone number, email address and other contact information). If the Customer information is false, invalid or otherwise may render the Customer unable to obtain business notice, service reminder, customer service, technical support, dispute coordination, non-compliance punishment and other information in a timely manner, the Customer shall be liable therefor correspondingly.

18.2. Unless otherwise agreed by the Parties, the Customer shall give notices to JiHu (GitLab) according to the contact information published on the JiHu GitLab Website.

18.3. Except the Parties agree otherwise, JiHu (GitLab) can send business notices, service reminders, verification messages, marketing information, and other information related to the JiHu GitLab Services, to the Customer through one or more of the methods such as website announcement, system notification, internal message, email, short message, instant messaging and letter. The foregoing information shall be deemed to have been given:

19. Miscellaneous

19.1. This Agreement shall apply to other agreements and/or Order Forms entered into between JiHu (GitLab) and any individual or entity in connection with the JiHu GitLab Services. The Parties hereby agree to the terms and conditions herein, provided that should there be any special provisions in such effective Order Forms as may be executed by the Parties and the Order Forms expressly exclude the conflicting provisions in other agreements, such special provisions may prevail.

19.2. The Parties shall abide by the provisions in this Agreement that survive the termination or expiration of this Agreement subject hereto, including without limitation Articles 4.5, 7, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 10, 11, 18, 19.3 and 19.10.

19.3. If any one or more provisions hereof are held to be invalid, illegal or unenforceable in any respect under any applicable law or regulation, the validity, legality or enforceability of the remainder hereof shall not be affected or impaired whatsoever. The Parties shall negotiate in good faith seeking to agree on new provisions to the extent permissible by law with economic effects as close as possible to the previous invalid, illegal or unenforceable provisions.

19.4. Without prior written consent of JiHu (GitLab), the Customer shall not assign or delegate its rights or obligations hereunder in part or in whole to a third party.

19.5. The Customer acknowledges and agrees that JiHu (GitLab) may assign or delegate all or part of its rights or obligations hereunder to its Affiliates or recognized third parties without consent of the former. The Customer understands that the JiHu GitLab Services contemplated hereby may be provided by Affiliates of JiHu (GitLab) or third parties designated and recognized by, with qualification satisfactory to, JiHu (GitLab).

19.6. Any rights and obligations of the Parties hereunder shall remain valid irrespective of the acquisition, merger, reorganization and separation of either Party. In any of the above circumstances, the rights and obligations hereunder shall be assumed by the entity(ies) surviving such acquisition, merger, reorganization or separation. Where the Parties’ rights and obligations hereunder are assumed by the entities surviving the separation of the Parties, the Parties and such entities shall have the relevant rights and obligations respectively.

19.7. The annexes (if any), the JiHu GitLab Website Agreements, the Separate Agreements and other documents of this Agreement shall constitute an integral part of this Agreement. Any other oral and written documents not incorporated herein or made in accordance herewith shall not be binding upon the Parties.

19.8. Unless otherwise specified herein, any change, supplement or amendment during the performance hereof shall be separately agreed upon by the Parties in writing, and all waivers and modifications shall not take effect except they are made in writing and duly executed by the Parties. Subject to JiHu (GitLab)’s prior written consent, any written agreement (including but not limited to Order Form) required to be executed may, in which case affixing physical common seals or contract seals, or physical signature is temporarily implausible for special reasons such as quarantine control caused by the COVID-19, at the option of the Parties, bear the legal and effective electronic seals as an alternative, provided that either Party who affixes electronic seals shall notify the other Party thereof as soon as practical, and shall, within ten (10) business days following the lift of quarantine control, deliver the original execution page with the physical common seal or contract seal to the other Party. Any written agreement required to be executed shall come into effect after being affixed with the common seals, contract seals or electronic seals by the Parties (which, solely for the sake of effectiveness, exchanging electronic copies may suffice).

19.9 The Parties hereto are independent entities and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint ventures. Both Parties agree that neither shall have power or right to bind or obligate the other, nor shall either hold itself out as having such authority.

19.10. This Agreement shall be governed by the laws of the People’s Republic of China. Any dispute arising from or in connection with this Agreement shall be settled by the Parties through friendly negotiation. If the dispute is not resolved through negotiation within fifteen (15) days, either Party may submit the dispute to the people’s court with jurisdiction in the place of JiHu (GitLab)’s domicile for resolution through litigation.

19.11. This Agreement may be provided in Chinese, English or other languages. In case of any discrepancies or conflicts among different linguistic versions of this Agreement, the Chinese version shall prevail.

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