Thanks for signing up to participate in GitHub pre-release programs! As a trusted member of our community, your feedback on new and experimental features is important to us. In order to share these new products and services with you – many of which are still secret and in development – we’ll need you to agree to a special set of terms. Welcome to the Pre-Release Program Agreement (“Agreement”).
This Agreement is a legal agreement between you (“you”, "your") and GitHub, Inc. (“GitHub”, “we”, or “us”). Be sure to read this Agreement carefully – you can only be a pre-release program participant if you accept all the terms of this Agreement. By clicking the “Register for the GitHub Pre-Release Program” button, or by participating as a pre-release program participant in any way – for example, by accessing information about GitHub products or services that aren’t yet available to the general public – you’re agreeing to be bound by all the terms of this Agreement. IF YOU’RE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON’T HAVE SUCH AUTHORITY, OR IF YOU DON’T AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT CLICK THE "REGISTER FOR THE GITHUB PRE-RELEASE PROGRAM" BUTTON, AND YOU CAN’T BE A PRE-RELEASE PROGRAM PARTICIPANT. IF YOU’RE A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT THE PERSON CLICKING THE "REGISTER FOR THE GITHUB PRE-RELEASE PROGRAM" BUTTON HAS THE AUTHORITY TO BIND YOU TO THIS AGREEMENT.
You need to have an account on GitHub.com or on a licensed instance of GitHub Enterprise in order to be a pre-release program participant. In addition to the GitHub.com Terms of Service or your applicable GitHub Enterprise License Agreement, as applicable, (the "Generally Applicable Terms"), by clicking the "Register for the GitHub Pre-Release Program" button, you are also agreeing to be bound by this Agreement, such that both agreements will apply to you concurrently. In the event of a direct conflict between this Agreement and the Generally Applicable Terms, your Generally Applicable Terms will control, except with respect to any use of Pre-Release Materials, in which case this Agreement will control.
2. Confidentiality; Access to Pre-Release Materials
As a pre-release program participant, you may get access to special information that isn’t available to the rest of the world. Due to the sensitive nature of this information, it’s important for us to make sure that you keep that information secret.
You agree that any non-public information we give you, or that you may have access to as a pre-release program participant, will be considered GitHub’s confidential information (collectively, “Confidential Information”), regardless of whether it is marked or identified as such. You agree to only use such Confidential Information for the express purpose of testing and evaluation of the Pre-Release Materials (the “Purpose”), and not for any other purpose. You should use the same degree of care as you would with your confidential information but no less than reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of our Confidential Information. You promise not to disclose, publish, or disseminate any Confidential Information to any third party other than your employees and contractors, and then only to the extent that: (i) they need to know the Confidential Information for the Purpose; (ii) you make them aware of the confidential nature of the Confidential Information; (iii) you remain responsible for the acts and omissions of such employees and contractors; and (iv) we don’t otherwise prohibit or restrict such disclosure.
You understand that unauthorized disclosure or use of our Confidential Information could cause us irreparable harm, and significant injury that may be difficult for us to quantify. Accordingly, you agree that we’ll have the right to seek immediate injunctive relief to make sure you comply with this Agreement, in addition to any other rights and remedies we may have. If you are required by law, regulation or a valid binding order of a court of competent jurisdiction to disclose our Confidential Information, you may do so, but only if you notify us before you do, and do your best to limit such disclosure and to seek confidential, protective treatment of such information.
The obligations in this Section 2 won’t apply to information that you can prove: (i) was generally available to the public before we disclosed it to you; (ii) became generally available to the public after we disclosed it to you, through no action or inaction on your part, or on the part of your employees or contractors; (iii) you knew about before we disclosed it to you; (iv) was disclosed to you by a third party, who didn’t have any confidentiality obligations with respect to it; (v) you independently developed without breach of any confidentiality obligation to us or any third party; or (vi) we gave you permission to disclose, in a writing signed by one of our authorized representatives. If we give you access to any software, pre-release software or related documentation or materials, which may include videos or other forms of content (“Pre-Release Materials”), then subject to your compliance with the terms and conditions of this Agreement and your Generally Applicable Terms, we hereby grant you a nonexclusive, nontransferable, revocable right and license to use the Pre-Release Materials during the term of this Agreement, solely for the Purpose. If the Pre-Release Materials are accompanied by a separate license agreement, you agree that the separate license agreement (in addition to any more restrictive provisions contained in this Agreement or your Generally Applicable Terms) will apply. You agree not to decompile, reverse engineer, disassemble, or otherwise reduce the Pre-Release Materials to a human-perceivable form, and you promise not to modify, network, rent, lease, transmit, sell, or loan the Pre-Release Materials, in whole or in part. You understand that we’re under no obligation to provide any Pre-Release Materials to you, to provide you with updates, enhancements, or corrections to the Pre-Release Materials, or to notify you of changes that we make to our products and services, now or in the future.
3. Term and Termination
This Agreement begins on the date you click “Agree”, and continues for a period of one (1) year. This Agreement will automatically renew for successive one-year terms unless either party gives written notice at least thirty (30) days before the current term expires that it wants to terminate, or one party terminates it earlier in accordance with this Section 3.
Either you or GitHub may terminate this Agreement for any reason, without cause, upon thirty (30) days prior written notice to the other. This Agreement will terminate immediately, without the requirement of notice, if you breach any term of this Agreement or your Generally Applicable Terms.
The rights and obligations in Sections 1, 2, and 4 through 17 will survive the termination or expiration of this Agreement. Upon termination or expiration of this Agreement all of the rights and licenses we granted you in this Agreement will immediately cease to exist, you will return (or, at our request, destroy) all of our Confidential Information and any copies (including electronic copies) which are in your possession or control, and you will certify in writing that you’ve complied with these requirements.
4. Warranties and Disclaimers
You warrant to us that you: (i) have the authority to execute this Agreement and to perform its obligations; (ii) will make no false or misleading statements or representations regarding GitHub or our products and services; and (iii) will not take on any obligation or responsibility, or make any representation, warranty, guarantee or endorsement to anyone on our behalf (including, without limitation, any of our products or services).
YOU UNDERSTAND AND AGREE THAT ANY MATERIALS OR INFORMATION THAT WE GIVE YOU OR THAT YOU HAVE ACCESS TO UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY CONFIDENTIAL INFORMATION OR PRE-RELEASE MATERIALS) ARE PROVIDED “AS IS”, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WE SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
We’ll be giving you access to lots of useful pre-release products, services, and information, such as the Pre-Release Materials, and there are ways that you could use them improperly that could cause us harm. With that in mind, and since we can’t control the ways that you use what we give you, you agree that you will indemnify, defend and hold us harmless from and against any and all claims which may arise under or out of your participation in any pre-release program; your negligence or intentional misconduct; any misrepresentations you make with respect to us, or our products or services; or your violation of any part of this Agreement.
6. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), OR ANY OTHER THEORY, AND WHETHER OR NOT WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, EXCEED THE GREATER OF (I) AMOUNTS YOU ACTUALLY PAID US UNDER THIS AGREEMENT; OR (II) FIVE HUNDRED DOLLARS ($500). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THIS AGREEMENT.
7. Export Control
You aren’t allowed to export or re-export any of our Confidential Information, except as authorized by United States law and the laws of the jurisdiction in which the Confidential Information was obtained. In particular, you aren’t allowed to export or re-export our Confidential Information into any U.S. embargoed countries, to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, or to anyone on the U.S. Department of Commerce Denied Person's List or Entity List. By participating in a pre-release program or receiving any of our Confidential Information, you represent and warrant that you are not located in any such country or on any such list.
8. Proprietary Rights
You agree that GitHub and its licensors own all right, title and interest in and to the Pre-Release Materials, and all other GitHub products and services; all information and data relating to their configurations and combinations; and all modifications to and derivative works of any of the foregoing. You agree not to remove, alter, cover or obfuscate any copyright or other proprietary rights notices we place on or embed in the Pre-Release Materials, or any other GitHub products and services.
9. Government Users
If you are a Government entity, this Section applies to you. Certain of our Confidential Information may be considered “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. GitHub, Inc. 88 Colin P. Kelly Street, San Francisco, CA 94107.
10. Independent Development
Nothing in this Agreement will impair our right to develop, acquire, license, market, promote or distribute products, software or technologies that might compete with yours.
We may collect certain additional personal information from participants in the pre-release programs. For example, we may invite participants to send us feedback (as explained in Section 12). We might ask questions about each user's experiences, familiarity with the product, or demographic information. We use this information to improve our products and services, and we do not sell it to third parties or advertisers. You may decline to give us feedback, decline to answer specific questions, or contact us to delete or alter the information we have collected about you.
We’re always trying to improve of products and services, and your feedback as a pre-release program participant will help us do that. If you choose to give us any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback for our products or services (collectively, “Feedback”), you acknowledge and agree that GitHub will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate the Feedback into our products, services, and documentation.
13. Independent Contractors
The parties to this Agreement are independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
You aren’t allowed to assign or transfer this Agreement, or any of your rights under it, in whole or in part, by operation of law or otherwise, without our prior written consent.
15. Governing Law and Venue
This Agreement will be interpreted and construed in accordance with the laws of the State of California, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and each party hereby consents to personal jurisdiction there.
16. Amendments; Waivers; No Third Party Beneficiaries
This Agreement may not be changed, except by a writing signed by both parties. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. If any term, condition, or provision in this Agreement is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law. We each expressly agree that there are no third party beneficiaries to this Agreement.
17. Entire Agreement
This Agreement and your Generally Applicable Terms contain the entire agreement of the parties with respect to its subject matter and supersede all prior communications, representations, understandings and agreements, whether written or oral. The terms or conditions of any of your purchase orders, acknowledgements, or other documents that you send us in connection with this Agreement will be null and void, and of no effect.