Philipp Eckelmann, private entrepreneur, (“Vendor”) is willing to license the App you have chosen to purchase or evaluate from Atlassian Marketplace if you accept the terms of this Agreement.
Please read the agreement carefully. By downloading and installing App, or by otherwise indicating your assent, you accept the terms of the Agreement.
If you are not willing to be bound by all the terms of this Agreement, do not download and install App, or do not otherwise consent to the Agreement.
When you are accepting this Agreement on behalf of your employer or another company or organization, you represent and warrant that you have full authority to act for and to bind that legal entity to this Agreement; the terms “you” and “your” will refer to that legal entity.
- “Agreement” refers to this P. Eckelmann App End User License Agreement (for Apps distributed through Atlassian Marketplace). This Agreement is not applicableto Vendor’s apps distributed by Vendor or its partners directly, or otherwise distributed not through Atlassian Marketplace. In such case, please, refer to the license agreement and SLA terms (if any) accompanying your order.
- “App”means a software application developed and distributed by Vendor that you obtain through Atlassian Marketplace (either paid or free) including Documentation and any upgrades, modified or subsequent versions, updates, or error corrections provided by Vendor.
- “Host Application” means a software application developed and distributed by Atlassian with which App is designed to interoperate or work with (e.g. Confluence, Bitbucket, Jira).
- “Atlassian Marketplace” means an online marketplace for server and cloud apps, owned and operated by Atlassian and available at https://marketplace.atlassian.com.
- “Atlassian” means Atlassian Pty Ltd, an Australian corporation (ABN 53 102 443 916), the owner and provider of Atlassian Marketplace and a reseller of Apps available through Atlassian Marketplace.
- “Documentation” any user manuals, FAQ or support pages, information contained on App Details Page, and other documentation related to App provided by Vendor in electronic or online form.
- “App Details Page” means a section of Atlassian Marketplace dedicated to a particular App. App Details Page may include several webpages or tabs.
- “Server App” means downloadable App that you obtain from Vendor or its authorized reseller in binary form hosted on your server. Atlassian may also designate them as “Data Center” deployments or apps.
- “Reseller” means Atlassian, Atlassian Solution Partners or other Atlassian authorized resellers, through which you have obtained App from Atlassian Marketplace.
- “Authorized User” means a person who accesses and uses App and, in the case of paid App, for which the necessary fees have been paid to Resellers.
- “Scope of Use” means your authorized scope of use for App as specified in ordering documentation, which include, as applicable: (i) number and type of Authorized Users, (ii) numbers of licenses, copies or instances (for Server App), or (iii) other restrictions or billable units (as applicable).
- “Systems” means hardware systems owned, leased, operated or controlled by you.
- “Access Credentials” means Authorized Users’ IDs and passwords required to access functionality of App (if any).
- “SLA” means terms and conditions of Vendor’s support for App (if applicable) as provided at Supportand Service Level Agreement
- “Third-Party Services” means software platforms, services, plug-ins, applications, components developed and/or provided by Atlassian (e.g. Atlassian Marketplace, Host Applications, etc.) or by other Atlassian vendors and software developers.
- “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party of this Agreement, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
Vendor or its licensors own all right, title and interest, including all worldwide intellectual property rights in App and the trademarks, service marks and logos contained therein, and App is licensed to you directly by Vendor, not sold, irrespective of the use of terms such as “purchase” or “sale”.
3. License Grant
Subject to the terms and conditions of this Agreement and provided you have paid the applicable fee to Reseller (except for evaluation period and for free Apps), you are granted a limited, worldwide, non-exclusive, non-transferable, non-assignable, non-sublicensable and revocable license to (i) download and install one production instance (except for evaluation period) of App on your Systems (for Server App), and (ii) use App on your Systems for single instance of your Host Application during the term of the Agreement or the applicable subscription term:
- for paid Apps – according to (a) the Scope of Use, (b) the license terms as provided in the “Pricing” section of App Details Page, and (c) Documentation;
- for free Apps – according to the terms specified in Documentation.
Atlassian may make available “developer”, non-production licenses free of charge to allow you to deploy non-production instances, such as for staging or QA purposes. Such non-production licenses may be available after the purchase of certain paid Server Apps. These licenses are for testing purposes and for staging or development environments only. They shall not be used in a live production instance. Atlassian handles the matters of availability and other terms and conditions of non-production licenses.
You may make and use one copy of Server App for disaster recovery or business resumption purposes.
No other right, title or interest is granted except as expressly stated in this Agreement.
License is granted subject to the condition that you must ensure the maximum number of Authorized Users that are able to access and use App concurrently is less or equal to the number of users for which the necessary fees have been paid to Resellers. The maximum number of Authorized Users will be determined by the license tier you have chosen when ordering App.
You acknowledge that App will only function if its license tier matches the tier of the Host Application.
4. License Restrictions
You may not:
- Reverse engineer, decompile or disassemble App or otherwise seek to obtain or derive the source code, underlying ideas or algorithms, except as permitted by law.
- Adapt, alter, modify, translate, make any attempt to create derivative works of/from App.
- Defeat, bypass, disable, interfere with or otherwise circumvent any license key mechanism in App or otherwise circumvent mechanisms in App intended to limit your use.
- Attempt to access or use App other than by using the Access Credentials.
- Remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in App.
- Redistribute, encumber, sell, rent, lease, sublicense, assign, or otherwise transfer App or any rights or interest therein.
- Use App as part of a service provider, software-as-a-service, display, perform, or publish or otherwise permit third parties to benefit from the use or functionality of App, unless it is not expressly permitted by this Agreement.
- Use App in any manner not authorized by this Agreement.
5. Payment, Subscriptions, Renewals, Refunds, Delivery
Pricing terms and conditions are set out in the “Pricing” section of App Details Page and are subject to change.
Reseller will deliver the applicable license keys (in the case of Server App) to the email address(es) you specified to Reseller. All deliveries will be electronic. You are responsible for installation of App and its compatibility with your Systems, other hardware, software and services.
Any and all payments, delivery, renewals, subscriptions and refunds are handled by and managed through Reseller. Vendor is not involved in these matters, is not responsible for the processing of payments, delivery, renewals, or refunds, and shall not be liable for any matter in connection therewith. Please, refer to the “Pricing” section of App Details Page and to a relevant Atlassian Marketplace T&C for more information about pricing, delivery, billing, renewals and payment terms.
6. Authorized Users
Only Authorized Users may access and use App. Some Apps may allow you to designate different types of Authorized Users, in which case functionality may vary according to the type of Authorized User. Authorized Users may be yours or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf.
Your Customers. You may also permit your customers to have limited access to certain Apps as Authorized Users, provided that (i) you have entered into valid, binding agreements with your customers that require them to comply with the applicable terms of this Agreement, including any conditions or restrictions with respect to use of, or access to App, (ii) the purpose of your customers’ access and use of your instance of App is solely to support their use of your own products and services that are unrelated to App (iii) your customers may not receive any administrator, configuration or similar access to App, and (iv) you do not charge your customers for such access to App. For the avoidance of doubt, your customers are not parties to, or third party beneficiaries under the Agreement.
You are responsible for compliance with this Agreement by all Authorized Users. All use of App by you and your Authorized Users must be within the Scope of Use, according to Documentation and solely for the benefit of you or your Affiliates.
7. Access Credentials
If App requires Access Credentials you must ensure that all Authorized Users keep their Access Credentials for App strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You and Authorized Users may not convey, transfer or otherwise disseminate Access Credentials or their parts to any other person, entity or organization.
You accept responsibility for the confidentiality and use of Access Credentials that you may receive for your Authorized Users’ access to and use of App. You accept responsibility for all time used and all activity that occurs through or under your Access Credentials. You agree to notify Vendor immediately if you become aware of any loss, theft or unauthorized use of Access Credentials.
8. Evaluation License
App may be provided for free evaluation period for you to assess its features and performance. Evaluation license is granted for evaluation purposes only, and for a limited period of time.
Atlassian handles evaluations and sets out evaluation terms and conditions and its extension (if applicable), which vary for Cloud Apps and Server Apps. Please, refer to the “Pricing” section of App Page for more details.
9. Third Party Software and Services
App may be connected, interoperate or work with, and/or utilize Third-Party Services.
You recognize and acknowledge that:
- Use of any Third-Party Service and information will be governed by the applicable license agreements or terms of services, if any, with such third party. You shall comply with the terms of these agreements. VENDOR IS NOT RESPONSIBLE FOR PERFORMANCE AND/OR RELIABILITY OF ANY THIRD PARTY SERVICES AND WILL HAVE NO LIABILITY OF ANY KIND FOR YOUR USE OF SUCH THIRD PARTY SERVICES AND MAKES NO WARRANTY OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO SUCH THIRD PARTY SERVICES.
- Vendor conducts no investigation or review of any of such Third-Party Services, and does not recommend, endorse, approve or disapprove of any of them.
10. Maintenance (Updates and Support)
The purchase price of Server App includes maintenance (version updates and support). Maintenance is valid for a prepaid period of one, two or three year(s), or for other term as agreed by you and Reseller.
The pricing details and terms of maintenance renewal are specified in the “Pricing” section of App Details Page.
Vendor does not undertake to provide maintenance for free Apps. Vendor may, at its sole discretion and on its own terms provide maintenance for free Apps.
Vendor provides support services for App in accordance with its SLA.
Support for App consists of online FAQ, online documentation and support via email. Support is available in English. At Vendor’s discretion, it may make available support in other languages or through other communication channels.
Vendor will make updates or upgrades available for Apps, if and when available.
For the avoidance of doubt support and maintenance do not include any custom software development or implementation of custom features for Apps or any assistance with the Host Application or any other third-party services or products, their updating, maintenance or support.
11. Your Feedback
If you choose to communicate to Vendor any feedback, ideas or suggestions for improvement of Apps, you grant Vendor free-of-charge, irrevocable, non-exclusive, transferable right to use, modify, share, distribute and communicate such feedback for any and all commercial or non-commercial purposes, without charge and free of any obligation of attribution. You warrant that any such feedback you communicated to Vendor is not subject to any license or any other third party right. No such feedback will be considered your Confidential Information.
Vendor does not require from you to provide Vendor with any of your confidential or non-public information.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is clearly identified as confidential at the time of disclosure and is accepted by the Receiving Party as such. In case the Receiving Party believes the Disclosing Party has shared with the Receiving Party information, marked as confidential, but which the Receiving Party does not need or has not requested, the Receiving Party will immediately return to the Disclosing Party and/or destroy all records of such information.
Notwithstanding the above any Vendor’s intellectual property and technology shall be deemed Confidential Information of Vendor without any marking or further designation.
Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
14. Disclaimers of Warranties
APP IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. YOU ASSUME RESPONSIBILITY FOR SELECTING APP TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM APP OR INFORMATION MADE AVAILABLE VIA APP. WITHOUT LIMITING THE FOREGOING PROVISIONS, VENDOR MAKES NO WARRANTY THAT APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT APP WILL MEET YOUR REQUIREMENTS.
15. Limitation of Liability
Neither party shall be liable for any loss resulting from a cause over which it does not have direct control, including but not limited to, the failure of electronic or mechanical equipment or communication lines, Internet, telephone or other interconnect problems, unauthorized access, theft, your errors, or events of force majeure.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE APP, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO RESELLER FOR APP IN THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF FREE APP SHALL BE US$20. THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR TO YOUR BREACH OF SECTION 4 (LICENSE RESTRICTIONS). The parties agree that the limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to free Apps, including any maintenance, warranty, and indemnity obligations.
Indemnification by You. You agree to indemnify and hold harmless Vendor, its Affiliates, officers, directors, employees, agents, representatives from and against any and all claims, including, but not limited to, any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorney’s fees, of every kind and nature, arising from or relating to your use of App and/or your violation of this Agreement or any third party’s rights.
Indemnification by Vendor. Vendor agrees to indemnify, defend and hold harmless you, your Affiliates, officers, directors, employees, agents and representatives from and against any and all claims, including, but not limited to, any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorney’s fees, of every kind and nature, as incurred, associated with or arising out of any threatened or actual claim for infringement, breach, or misappropriation of any intellectual property or proprietary right, including, without limitation, patents, copyrights, trade secrets, trademarks, service marks, by or based upon use of App by you or your Affiliates.
Vendor reserves the right, at any time and at its sole discretion:
- To modify or revise this Agreement.
- To update or modify Documentation.
- To make changes, update or discontinue App or any feature or functionality thereof at any time.
- To terminate or restrict access to App.
Amendments to the Agreement. If a revision of the Agreement meaningfully reduces your rights, we will use reasonable efforts to notify you, for example:
- By sending an email to the contact you designate;
- By posting the amendments or the amended Agreement to Vendor’s website; or
- In App itself.
You may be required to click through the updated Agreement to show your acceptance.
If you do not agree to the updated Agreement after it becomes effective, you shall discontinue use of App immediately.
Your continued use of App after a change or update has been made will constitute your acceptance to the amended Agreement.
18. Term and Termination
This Agreement shall commence upon first installation, download, subscription to or use of App by you, whether App is provided for evaluation, as a fully licensed version, or in any other form.
Unless earlier terminated as set forth herein or terminated due to expiration of evaluation period, this Agreement is effective for the term specified in the “Pricing” section of App Details Page.
You may terminate this Agreement at any time, for any reason or no reason.
Without limiting other remedies, Vendor may suspend or terminate this Agreement with you, or may terminate or suspend your use of App at any time and with no liability to you if:
- You violate any term of this Agreement.
- You infringe proprietary rights, rights of privacy, or intellectual property rights of any person, business or organization.
- You engaged in other actions relating to or in the course of using App that may be illegal or cause liability, harm, abuse or disruption for you, other users, Vendor, any other third parties or for App.
- We have not received our corresponding payment for App from the Reseller.
- It is required by law.
- Vendor ceases offering or discontinued App.
We may terminate your right to use free Apps at any time and for any reason in our sole discretion, without liability to you.
Your license will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified when you ordered App.
Upon termination, all license grants end and you must destroy and permanently erase all copies of App and Vendor’s Confidential Information, and cease all use.
Whatever the cause of termination is, you will not receive any credits or refunds for any license or maintenance fees which you may have paid in advance (including fees for a perpetual license), except as may otherwise be provided by Atlassian Marketplace T&C. You agree and acknowledge that Resellers are responsible for refunds (if any) and you will not request any refunds from Vendor.
Survival. The following provisions will survive any termination or expiration of this Agreement: Sections 2 (Ownership), 4 (License Restrictions), 5 (Payment, Subscriptions, Renewals, Refunds, Delivery), 9 (Third Party Software and Services), 11 (Promotional Materials), 12 (Your Feedback), 14 (Confidentiality), 15 (Disclaimer of Warranties), 16 (Limitation of Liability), 19 (Term and Termination), 20 (Jurisdiction), and 21 (Miscellaneous).
Choice of Law. You agree that the laws of the Federal Republic of Germany govern this Agreement, its subject matter, any action related to this Agreement, and any claim or dispute that may arise, without regard to the conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.
Location for Resolving Disputes. You further agree that any disputes or claims related to this Agreement will be resolved by a state court located in the Federal Republic of Germany. BY ENTERING THIS AGREEMENT, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST VENDOR AND/OR ITS AFFILIATES BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE STATES COURTS IN THE FEDERAL REPUBLIC OF GERMANY OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS. Nothing in this Section shall limit the right of Vendor to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
Consent to Receive Communications in Electronic Form. For contractual purposes, you:
- Consent to receive communications from us in an electronic form via the email address you have submitted; and
- Agree that this Agreement and all other agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
Export/Import Laws. You must ensure that you comply with any applicable export or import rules, regulations and restrictions applicable to your purchase or use of App.
Assignment. You may not assign or transfer the Agreement. Vendor may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Vendor’s Affiliates, contractors and service providers may exercise all rights of Vendor under the Agreement.
Entire Agreement. This Agreement is the entire agreement between you and Vendor relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, letter or other communication between the parties relating to its subject matter during the term of this Agreement.