License Agreement for JetBrains Profiler API Products

Version 1.1, effective as of December 20, 2021

IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING JETBRAINS SOFTWARE, SERVICES, OR PRODUCTS, YOU BECOME A PARTY TO THIS AGREEMENT, YOU DECLARE YOU HAVE THE LEGAL CAPACITY TO ENTER INTO SUCH AGREEMENT, AND YOU CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.

1. PARTIES

1.1 "JetBrains" or "we" means JetBrains s.r.o., having its principal place of business at Na hrebenech II 1718/10, Prague, 14000, Czech Republic, registered in the Commercial Register maintained by the Municipal Court of Prague, Section C, File 86211, ID No. 26502275.

1.2. "Licensee" or "you" means the individual, legal entity, or open source development group entering into and exercising rights under this Agreement. For legal entities, "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee; for purposes of this definition, "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.

2. DEFINITIONS

"Profiler API" means software designated by JetBrains as a JetBrains Application Programming Interface (API) on JetBrains’ website or in JetBrains’ published documentation, in binary and source form, and including any associated JetBrains software files, documentation, software code, usage samples, upgrades, or other materials made available by JetBrains, and any Third Party Software.

"Profiler API Extract" means (i) names, paths, and metadata of assemblies executing in Profiler API Target; (ii) names of methods being executed in Profiler API Target; (iii) time spent by you in each method; (iv) your domain and user name; (v) the type of computer and version of operating system running Profiler API Target, or (vi) data and information accessed while using Profiler API Target.

"Profiler API Target" means the software designated either on an applicable software website or in applicable software documentation accessed by the Profiler API to read, extract, and copy information.

"Third Party Software" means third party software programs that are owned and licensed by parties other than JetBrains and that are either integrated with or made part of the Profiler API.

3. OWNERSHIP

The Profiler API is the property of JetBrains and/or its suppliers. The Profiler API is licensed, not sold. Title and copyrights to the Profiler API, in whole and in part and all copies thereof, and any and all modifications, enhancements, derivatives and other alterations of the Profiler API, regardless of who made them, are and will remain the sole and exclusive property of JetBrains and its suppliers.

Licensee agrees to comply with the terms and conditions contained in Third Party Software licenses with respect to Third Party Software. Licensee may review all such Third Party Software licenses and/or notices in either the respective product documentation or under the section "Third Party Software and Licenses" athttps://www.jetbrains.com/legal.

Licensee acknowledges that Section 7 and Section 8 of this Agreement shall also apply to Third Party Software and Licensee’s use thereof. JetBrains claims no right in the Third Party Software and will bear no responsibility with respect to any Third Party Software, and Licensee will look solely to the such other licensor(s) or owners, as applicable, of the Third Party Software for any remedy.

4. ACCEPTING THIS LICENSE AGREEMENT

4.1 In order to use the Profiler API, you must first agree to this License Agreement. You may not use the Profiler API if you do not accept this License Agreement.

4.2 You can accept this License Agreement by:

(a) clicking to accept or agree to this License Agreement, where this option is made available to you; or

(b) by actually using the Profiler API. In this case, you agree that use of the Profiler API constitutes acceptance of the Licensing Agreement from that point onwards.

4.3 You may not use the Profiler API and may not accept the Licensing Agreement if you are a person barred from receiving the Profiler API under applicable law.

4.4 If you are agreeing to be bound by this License Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this License Agreement. If you do not have the requisite authority, you may not accept the Licensing Agreement or use the Profiler API on behalf of your employer or other entity.

5. Profiler API LICENSE

5.1 JetBrains grants you a limited, worldwide, royalty-free, non-transferable and non-exclusive license to use the Profiler API subject to the terms, conditions, and limitations set forth in this Agreement.

5.2 You may copy, install, run, and use (and unless expressly restricted in the applicable Profiler API documentation, redistribute, combine with, and/or integrate into another work) any number of copies of the Profiler API to collect Profiler API Extracts from Profiler API Target in accordance with applicable documentation. If a Profiler API Extract is collected in JetBrains’ proprietary format, you may create and save copies of the Profiler API Extract, but the Profiler API Extract can only be viewed, processed, read, analyzed, interpreted, or further utilized using JetBrains developer tools software as detailed on the JetBrains website. Your use of particular Profiler API Target software may be subject to additional terms and limitations and it is your responsibility to read, understand, and comply with those terms and limitations.

5.3 Except as expressly provided in section 5.2, you may not modify, adapt, decompile, reverse-engineer, disassemble, or create derivative works of the Profiler API, or any part thereof.

5.4 You may not sell, allow access to, encumber, give, or sublicense to anyone the Profiler API or any portions thereof without our prior written consent.

5.5 The use, reproduction and distribution of Profiler API components licensed under an open source software license are governed solely by the terms of that open source software license and not this License Agreement.

5.6 You understand and agree that the Profiler API may be changed by JetBrains without prior notice, and that future versions of the Profiler API may be incompatible with applications developed on previous versions of the Profiler API.

5.7 Nothing in this License Agreement grants you a right to use any of JetBrains’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.

5.8 You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Profiler API.

6. USE OF THE PROFILER API BY YOU

6.1 We do not obtain any right, title, or interest from you (or your licensors) under this License Agreement in any software applications that you develop using the Profiler API, including any intellectual property rights that subsist in those applications.

6.2 You agree to use the Profiler API and write applications only for purposes that are permitted by (a) this License Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software).

6.3 You agree that you will not engage in any activity, or permit or encourage any third party activity, with the Profiler API that would constitute a breach of JetBrains’s license terms and conditions.

6.4 You agree that you are solely responsible for any breach of your obligations under this License Agreement, any applicable third-party contract or terms of service, and/or any applicable law or regulation, as well as for the consequences (including any loss or damage which JetBrains or any third party may suffer) of any such breach.

7. DISCLAIMER OF WARRANTY

7.1 THE PROFILER API IS PROVIDED TO LICENSEE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES. USE OF THE PROFILER API IS AT YOUR OWN RISK.

7.2 JETBRAINS MAKES NO WARRANTY AS TO THE PROFILER API’S USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETBRAINS (AND ITS AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, AND EMPLOYEES), AND ITS LICENSORS, SUPPLIERS (INCLUDING THE PROVIDERS OF THIRD PARTY SOFTWARE) AND RESELLERS (COLLECTIVELY HEREUNDER, "JETBRAINS PARTIES") DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT) WITH REGARD TO THE PROFILER API AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.

7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE JETBRAINS PARTIES DO NOT REPRESENT OR WARRANT THAT THE PROFILER API: (A) IS ACCURATE, RELIABLE, OR CORRECT; (B) WILL MEET ANY LICENSEE REQUIREMENTS; (C) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; (D) IS FREE OF DEFECTS OR ERRORS AND THAT ANY, IF FOUND, WILL BE CORRECTED; AND/OR (E) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

7.4 ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROFILER API ARE DOWNLOADED AT LICENSEE’S OWN RISK; LICENSEE AGREES IT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY AND/OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.

7.5 LICENSEE MAY HAVE OTHER RIGHTS WHICH MAY NOT BE LIMITED OR EXCLUDED AND WHICH MAY VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. THIS DOCUMENT IS NOT INTENDED TO NEGATIVELY AFFECT SUCH RIGHTS.

8. LIMITATION OF LIABILITY

8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE JETBRAINS PARTIES BE LIABLE TO LICENSEE, LICENSEE’S AFFILIATES, USERS, OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) ANY LOSS OR DAMAGES IN CONNECTION WITH TERMINATION OR SUSPENSION OF LICENSEE’S ACCESS TO JETBRAINS’ PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT; OR (C) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF THE RELEVANT JETBRAINS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE (X) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THEY ARE FORESEEABLE, (Y) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR (Z) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR ACCESS TO THE PROFILER API OR SUPPORT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

8.2 THE TOTAL LIABILITY OF THE JETBRAINS PARTIES IN ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO TEN (10) US DOLLARS. THIS LIMITATION WILL APPLY EVEN IF THE JETBRAINS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF LIABILITY EXCEEDING SUCH AMOUNT AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. TERMINATING THIS LICENSE AGREEMENT

9.1 This License Agreement will be effective until terminated by either party.

9.2 JetBrains may at any time, terminate this License Agreement if:

(a) you have breached any provision of this License Agreement;

(b) JetBrains is required to do so by law; or

(c) JetBrains chooses to discontinue the Profiler API.

9.3 Upon expiration or termination of this Agreement all of the legal rights, obligations and liabilities which are explicitly stated to, or by necessity must, survive expiration or termination shall be unaffected by such termination or expiration, and shall continue to apply.

10. EXPORT REGULATIONS

Licensee shall comply with all applicable laws and regulations with regard to economic sanctions, export controls, import regulations, and trade embargoes ("Sanctions"), including those of the European Union and United States. Licensee certifies that it is not a person targeted by Sanctions nor otherwise owned or controlled by or acting on behalf of any person targeted by Sanctions. Further, Licensee agrees that it will not download or otherwise export or re-export the Profiler API or any related technical data directly or indirectly to any person targeted by Sanctions, or download or otherwise use the Software for any end-use prohibited or restricted by Sanctions.

11. CHANGES

JetBrains reserves the right to make changes to the License Agreement and the Profiler API. When these changes are made, JetBrains will make the new version of the License Agreement or the Profiler API available on the JetBrains website.

12.1 If any court of law having the jurisdiction to decide on this matter rules that any provision of this License Agreement is invalid, then that provision will be removed from this License Agreement without affecting the rest of this License Agreement. The remaining provisions of this License Agreement will continue to be valid and enforceable.

12.2 This License Agreement and your relationship with JetBrains under this License Agreement are governed by the laws of the Czech Republic. All disputes arising from the present License Agreement and/or in connection with it shall be finally decided with the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic by three arbitrators in accordance with the Rules of that Arbitration Court.

12.3 No Waiver. Our failure to enforce or exercise any right under this Agreement is not a waiver of that right.