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End-User License Agreement (EULA) for Atlassian apps

This End-User License Agreement (EULA) is a binding legal agreement between Mibex Software GmbH, Albisriederstrasse 253, 8047 Zürich, Switzerland (the «Licensor»), a provider of cloud-based and downloadable applications including related documentation and services (the «Software») through the Atlassian Marketplace («Application Store») or any other means that interoperate with applicable products and services by Atlassian Pty Ltd («Atlassian»), and you (either an individual or a single legal entity, the «Licensee») whose details are provided to the Licensor when you order or receive the Software from the Licensor or a Reseller (the «Purchase»).

The Licensee agrees to be bound by the terms of this EULA by copying, downloading, installing, licensing, purchasing or otherwise using the Software. If the Licensee does not agree to the terms of this EULA, the Licensee may not copy, download, install or otherwise use the Software.

This EULA is between the Licensor and the Licensee. Although the Application Store is not a party to the EULA, it has the right to enforce it against the Licensee as a third party beneficiary relating to Licensee's use of the Software.

Licensee's use of the Application Store is subject to (the «Atlassian Marketplace Terms of Use»).

1. Description

1.1. The features and functionalities of the Software and its intended use are materially described in Licensee’s order through the Application Store and the respective specifications therein (the «Order»).

1.2 The Software will, if not otherwise agreed or offered, be delivered only in electronic form.

1.3 Licensee may, to the extent agreed upon in the Order, install and operate the Software on its own systems («Downloadable Software»). Alternatively and to the extent agreed upon in the Order, Licensor will provide the Software as Software-as-a-Service («Cloud-Based Software»), for which the Licensor may use third party providers.

1.4 The Licensor will provide maintenance and support services, unless such services cannot be reasonably expected, for the Software on the Licensee’s request within the scope of the Order.

2. Intellectual Property Rights and Grant of License

2.1 Licensee acknowledges and agrees that the Licensor shall own any and all intellectual property rights with regard to the Software.

2.2 The Software is licensed, not sold, and no ownership right is conveyed to the Licensee, irrespective of the terms of use in this EULA.

2.3 This EULA grants the Licensee the rights according to the Order and the respective specifications including, but not limited to, for example the license, a maintenance or subscription period, the price, support and other services, and the number of authorized users.

2.4 The Licensor grants the Licensee a non-exclusive, non-sublicensable, non-transferable and worldwide license to use the Software limited to the scope of the Order. Cloud-Based and Downloadable Software are licensed on a subscription basis for a specified period of time as defined in the Order. The Licensee is allowed to install the Downloadable Software and make the Downloadable Software available for use on systems controlled, leased, or owned by the Licensee or a third-party provider as long as the Licensee remains fully responsible for any compliance with this EULA.

2.5 The Licensor reserves all rights not expressly granted to the Licensee in this EULA. In particular, the Licensee may not

  • license, sell, rent, lease, assign, distribute, transmit, display, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party without the Licensor’s prior express written consent

  • use the Software for any other purposes other than as permitted under the Order

  • to the extent permitted by law, decompile, disassemble, modify or reverse engineer the Software in whole or in part, or create any derivative works from the Software without the Licensor’s prior express written consent

  • make backup copies for any other reason than for backup purposes

3. Third-Party Software

3.1 The Licensee acknowledges that the Software may contain software licensed by the Licensor from third parties, including open source software, and embedded in the Software, and that in addition to this EULA, additional obligations may apply in relation to any use of such third-party software by the Licensee. Licensor will provide Licensee with a list of open source software used in the Software upon request. The Licensor shall not be liable for any third-party software.

3.2 The Software may depend on, require and use various third-party Application Programming Interface (APIs). The Licensor shall not be liable for any third-party APIs.

3.3 The Licensor shall not be obligated to indemnify Licensee or defend Licensee with respect to any third-party claim arising out of or relating to the Software. To the extent the Licensor is required to provide indemnification by applicable law, the Licensor, not the Application Store, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the Software infringes any third party intellectual property rights.

3.4 The Licensor may use third party providers for the performance of Cloud-Based Software. In particular, the Licensor may use carefully selected cloud service providers. Where Licensor uses commonly used cloud services (such as those from Atlassian Pty Ltd or Salesforce/Heroku), Licensee accepts that Licensor's obligations and liability under this EULA with regard to their portion of the services is limited to what Licensor can obtain or claim from these cloud service providers back-to-back. The cloud providers used by the licensor can be found in the DPA.

4. Data Protection

4.1 In case of Cloud-Based Software, Licensee will act as a controller and Licensor as its processor (each term as per the EU General Data Protection Regulation («GDPR») and the Swiss Data Protection Act («Swiss DPA») with regard to.

4.2 Licensee will comply with all applicable data protection and privacy regulations (including the GDPR and the Swiss DPA). It will inform relevant data subjects about the collection and processing and will get consent for the collection and processing of personal data, if and to the extent required by applicable law.

4.3 Further obligations, in particular Licensor's obligations as a processor, are specified in the Data Processing Agreement and as amended from time to time («DPA»).

4.4 Licensor collects and processes personal data also for its own purposes, in particular, but not exclusively, for the initiation, the administration and the execution of this EULA and for product development. Here, Licensor acts as a controller and will comply with the Swiss DPA. Further information on Licensor's processing activities can be found in its Privacy Notice (for the avoidance of doubt, the Privacy Notice is not a contract between the Licensor and the Licensee and does not form part of this EULA).

5. Payment Terms

5.1 The Licensor may ask for upfront payments as a condition to grant any license to the Licensee. Any license shall only be granted to the Licensee if the Licensor has received full payment for the respective license.

6. Modifications

6.1 The Licensor may, but is not obliged to, from time to time provide enhancements and improvements to the features and functionalities of the Software.

6.2 Updates may modify or delete certain features and functionalities or set new compatibility requirements of the Software. The Licensee agrees that the Licensor has no obligation (i) to continue to provide or enable any particular features and/or functionalities of the Software or (ii) to ensure the compatibility with the Licensees system and/or device.

6.3 All updates or any other modifications are subject to this EULA.

7. Termination

7.1 Either party may terminate an Order for Cloud-Based or Downloadable Software at the end of a subscription period without notice, and should there be no other Cloud-Based Software or Downloadable Software licensed, this EULA shall thereupon terminate.

7.2 The Licensor may terminate any license if the Licensee is in default with payments or if the Licensor cannot reasonably expect the Licensee to make due payments.

8. Limitation of Liability and Warranty

8.1 The Software is provided on an «as is» and «as available» basis without warranty, express or implied, of any kind of nature, including, but not limited to, any warranties of merchantability, fitness for a specific purpose, or performance. Licensor further provides no warranty that the Software will meet Licensee's requirements, achieve any intended results, operate without interruptions or be compatible or work with any other software, application, systems or services.

8.2 The Licensor provides no warranty that the Software be error free or that any errors or defects can or will be corrected. However, Licensor will use reasonable efforts to provide solutions for any reported issues in the context of the support and maintenance services agreed in the Order.

8.3  To the extent permitted by applicable law, Licensor, its employees and auxiliary persons shall not be liable for any direct or indirect damages, consequential loss, loss-of-profit or third-party claims resulting from or in connection with the use of the Software, loss of data or other information, for personal injury, delays, nondeliveries, misdeliveries, service interruptions, business interruption, the infringement of third-party rights or otherwise.

9. Indemnification

9.1 Licensee shall defend and indemnify Licensor, its affiliates, and its and their officers, agents and employees against any and all losses or costs (including attorney fees and costs) incurred by Licensor arising out of or in connection with a claim by a third party (i) alleging that the data provided by the Licensee, or any use thereof by the Licensee, infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Licensee's breach of its duties and obligations under this EULA, or (iii) violation of any rights of a third party.

10. Miscellaneous

10.1 The Licensee grants the Licensor the right to use the Licensee’s company name / name and logo and any review provided or published in relation to the Software within promotional material, on the Licensor’s social media channels and on the Licensor’s website. The Licensee can revoke this right for future usage any time by submitting a respective request to the Licensor.

10.2 If any provision of this EULA should be held to be unenforceable for any reason, such provision shall be amended only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall remain in full force and effect.

10.3 The Licensor may modify this EULA at any time and at its sole discretion. If a modification is detrimental to the Licensee, the Licensor shall use reasonable efforts to notify any affected Licensee by sending e-mails to known e-mail addresses or by publishing a notification on the Licensor’s website. Continued use of the Software after such a notification by the Licensee is considered as an agreement with the modified EULA.

11. Choice of Law and Venue

11.1 This EULA shall be governed exclusively by Swiss law excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11.2 The exclusive venue for both parties shall be the registered office of the Licensor.

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