IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, THE LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD, OR OTHERWISE USE OUR SOFTWARE.
Authorized Use refers to the installation of Agile Apps LLC Software Products on a physical server of Licensee’s choosing or installation in an Atlassian Cloud instance and the use of Agile Apps Software Products by Authorized Users for the Licensee’s internal business purposes in accordance with the terms of this Agreement.
Authorized User refers to named user that accesses and uses Agile Apps LLC Software Products under this EULA. The number of Authorized Users may not exceed the number of users purchased by Licensee on the Atlassian Marketplace.
License Fee means the total amount paid and payable to Agile Apps LLC by the Licensee for the Agile Apps Software Products.
Licensee means the person, company, organization or other entity on whose behalf you are ordering Agile Apps Software Products and entering into this EULA.
License Term means the term of each Agile Apps LLC Software Product license. The term will be specified in your Order.
Software means the Licensor’s software that accompanies this EULA, which may include computer software, Accessible Code and Protected Code, associated media, printed materials, electronic documentation, Internet-based services and Embedded Software.
2. GRANT OF LICENSE
Subject to the terms of this agreement, Agile Apps LLC hereby grants to the licensee a personal, non-transferable, non-exclusive license to use Agile Apps LLC products for Authorized Use. The licensee is permitted to install Agile Apps LLC products in an Atlassian application (i.e. Jira, Confluence) under Licensees control or in an Atlassian Cloud instance. The licensee is responsible for ensuring that the Atlassian applications are compatible with the Agile Apps LLC Licensee is installing.
The licensee is not permitted to: Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other Software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose Allow any third party to use the Software on behalf of or for the benefit of any third party Use the Software in any way which breaches any applicable local, national or international law Use the Software for any purpose that Agile Apps LLC considers is a breach of this EULA agreement.
The Licensee must pay all Fees by the due date and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA
4. MAINTENANCE AND SUPPORT
This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software (“Supplemental Software”), unless Licensor provides additional terms with any Supplementary Software.
Licensor may offer support services, and such services may be subject to the payment of additional fees. Any such support services will be the subject of a separate agreement.
5. INTELLECTUAL PROPERTY AND OWNERSHIP
The Licensor warrants that: it has the right to enter into this licence and to grant to the Licensee a licence to use the Software as contemplated by this EULA; the Software will conform in all material respects to the Software’s documentation; and the Software is free from viruses, worms, time bombs, Trojan horses and other harmful code.
6. BREACH BY LICENSEE
If the Licensee materially breaches any of its obligations, or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing. Breach of Additional Licenses Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
Without prejudice to any other rights and in addition to any other termination rights in this EULA, Licensor may terminate with immediate effect, this EULA if:
(a) the Licensee fails to comply with the terms and conditions of this EULA;
(b) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts;
(c) Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over Licensee (being a company);
(f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee;
(h) a creditor of Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Upon termination of a license granted under this EULA, the Licensee must at its own cost as soon as is reasonably practicable:
(a) cease access to and cease use of the Software; and
(b) remove all copies of the Software from its computer systems or any Un-controlled Systems, including archival or backup systems; and
(c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
Upon at least 30 days notice, Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
8. LIMITED WARRANTY
To the maximum extent permitted by applicable law, Licensor and its third party suppliers provide the Software and any Maintenance (Clause 4) AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA hereby disclaim all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, or reliability. Additionally, Licensee acknowledges that Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement. The Licensee may have remedies against Licensor imposed by law or statute that cannot be excluded by Licensor and its third party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability are limited
(a) at Licensor’s option, to:
(i) in the case of the Software:
1) repairing or replacing the Software; or
2) the cost of such repair or replacement; and
(ii) in the case of Maintenance;
1) resupply of the Maintenance; or
2) the cost of having the Maintenance supplied again; or
(b) if the limitation set forth in Clause 10 is not applicable, then Licensor’s maximum liability shall be equal to the amount actually paid by the Licensee for the Software.
Indemnification by Licensor
Subject to Clause 10, the Licensor will indemnify and hold harmless the Licensee against all costs, expenses, losses and claims made against the Licensee as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorized User’s use of the Software. The Licensee must notify promptly the Licensor of the charge of infringement or of the legal proceeding, give the Licensor sole control of the defense and related settlement negotiations, and Licensee must provide the Licensor, at the Licensor’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of the Licensee without its prior written consent. If the Software becomes, or in the opinion of the Licensor may become, the subject of a claim of infringement of any third-party’s intellectual property rights, the Licensor may, at its option and at its discretion:
(a) procure for the Licensee the right to use the Software free of any liability;
(b) replace or modify the Software to make it non-infringing; or
(c) refund any license Fees related to this Software paid by the Licensee. The foregoing states the sole liability of the Licensor and the exclusive Licensee remedy for any infringement of intellectual property rights by the Software or any other items provided by the Licensor under this EULA.
10. LIMITATION OF LIABILITY
Licensor shall not be liable to the Licensee where faults arise from:
(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this EULA, if the infringement would have been otherwise avoided;
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission)
(c) any breach of the Licensee’s obligations under this EULA;
(d) any modification not authorized by Licensor resulting in a departure from this EULA; or
(e) any operator error on the part of the Licensee.
Limitation on Damages
Notwithstanding anything in this Agreement and except for liabilities arising from
(i) the indemnity obligations under Clause 9 (indemnity),
(ii) the gross negligence or wilful misconduct of a party, or
(iii) the breach of a party’s obligations under Clause 5 (IP), in no event shall
(a) Licensor or its third party suppliers be liable with respect to any subject matter of this Agreement under any contract; including negligence or strict liability; indemnity or other legal, contractual or equitable theory for any indirect, special, punitive, incidental or consequential damages, however caused and whether or not advised in advance of the possibility of such damages; damages for lost profits or lost data; or cost of procurement of substitute goods, technology or services; or
(b) Licensor’s aggregate liability arising under, with respect to, or in connection with this Agreement exceed the Fees actually paid by the Licensee for the Software
For clarity, the maximum liability of Licensor under this EULA shall not exceed the Fees actually paid by the Licensee for the Software.
11. LICENSEE PUBLICITY RIGHTS
During this EULA validity, the Licensee grants the Licensor the right to include Licensee as a customer in Software promotional material, including the Licensee’s logo. The Licensee can deny Licensor this right at any time by submitting a written request via e-mail to Agile [email protected], requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.
12. GOVERNING LAW AND EXCLUSIONS
These Terms is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to these Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Exception from Jurisdiction
Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee’s place of residence) prior to, during, or after commencement or prosecution of any other court or arbitration proceedings or the final decision and award of the arbitrators.
Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
13. ENTIRE AGREEMENT
This EULA (and any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and the Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. Each party acknowledges that, in entering into this EULA (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA or those documents. Nothing in this clause shall limit or exclude any liability for fraud.
All notices to Licensor will be sent to:
Agile [email protected]
All notices to Licensee will be sent to the email address provided by Licensee upon Purchase of the Software. Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent In proving the service of any notice, it will be sufficient to prove, in the case of an electronic communication, that such communication was sent to the specified address of the addressee.
If Licensor fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if Licensor fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations. A waiver by Licensor of any default shall not constitute a waiver of any subsequent default. No waiver by Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.
If any provision of the EULA (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17. NO PARTNERSHIP
Nothing in the EULA is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party agrees not to disclose the other party’s confidential information or use such confidential information for any purpose other than to perform its obligations or exercise its rights hereunder without the other party’s prior written consent and to hold it in confidence and disclose it to any third party.
In this EULA, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assignee;
(c) the headings in this EULA are inserted for convenience only and shall not affect its construction;
(d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
(e) a reference to one gender includes a reference to the other gender;
(f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(g) a reference to writing or written includes e-mails, communications via websites and comparable means of communication.
Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18 and 19 shall survive any termination of this EULA.