Enduser Licence Agreement (EULA) for avono Atlassian Apps
This Customer Agreement is a legal agreement between the Licensee (either an individual or a single legal entity) whose details are provided to the Licensor upon purchase and avono AG, Breite Straße 2, 70173 Stuttgart, Germany ("Licensor") to use the Software.
This Agreement applies from the date when the Licensee receives the Software from a Reseller or the Licensor ("Purchase"). The Licensee agrees to be bound by the terms of this Agreement by installing, copying, downloading or otherwise using the Software. If the Licensee does not agree to the terms of this Agreement, it may not install, copy, download or otherwise use the Software. For the Trial Period free of charge the provisions in Appendix A shall apply.
By installing and using the Software the Licensee assures that it will use the Software only in the pursuit of its commercial, academic or self-employed professional activities.
Atlassian Software: A Software developed by Atlassian i.e. Jira, Confluence, Bitbucket, Bamboo, etc.
Authorized User: A named person (Named User License Model) who accesses and uses the Software under this Customer Agreement. The number of Authorized Users may not exceed the number of licensed users via the Atlassian Marketplace.
Documentation: The complete factual and technical description of the Software.
License Fee: The remuneration for the use of the Software pursuant to sec. 6.1.
Maintenance Term: The first twelve (12) months after the conclusion of this Customer Agreement.
Reseller: A third-party seller and distributor of products under authorization from the licensor.
2. Obligations of the Licensor
2.1 The Licensor will provide the Licensee with the Software. The Licensor shall provide the Software in an executable form (object code). The Licensor will deliver the Software by making it available for download on the Atlassian Marketplace. The Licensee is not entitled to be provided with the source code.
2.2 The installation of the Software shall be conducted by the Licensee. The Licensor shall reasonably advise and support the Licensee in preparing the installation. It is the Licensee's duty to observe the Licensor's instructions and/or to clarify the installation conditions with the Licensor in due time and comprehensively, in order to be able to carry out the installation smoothly and speedily.
2.3 Along with the delivery and/or installation of the Software, the Licensor shall submit the Documentation in electronic form by making the Documentation available for download. Any other documentation shall only be due if expressly agreed upon. The Licensee may use the Documentation solely for internal purposes and may reproduce the Documentation solely within the context of its own use in accordance with this Customer Agreement. The Licensee may not translate, modify, expand or create derivative works on the basis of the Documentation.
2.4 The provisions of this Customer Agreement for the Software apply to the Documentation accordingly.
3. Obligations of the Licensee
3.1 The installation of the Software shall be conducted by the Licensee. The Licensor shall reasonably advise and support the Licensee in preparing the installation. It is the Licensee's duty to observe the Licensor's instructions and/or to clarify the installation conditions with the Licensor in due time and comprehensively, in order to be able to carry out the installation smoothly and speedily.
3.2 If the Licensee requests support in case of defects, the Licensee shall send the Licensor detailed error reports and shall assist the Licensor comprehensively and at the Licensee's own expense with the error analysis and rectification.
3.3 The Licensee is obliged to accept, install and launch all new versions of the Software, updates, patches, etc. provided by the Licensor for error or defect rectification.
3.4 The Licensee shall install without delay, at the latest within 30 calendar days update packages provided by the Licensor to fix security issues or bugs to avoid or mitigate claims addressed by sec. 8.
4. Rights of Use
4.1 The Licensor shall grant to the Licensee a worldwide and non-exclusive, right of use of the Software – solely on hardware systems owned, leased or controlled by the Licensee – for the term of and pursuant to this Customer Agreement.
4.2 The right of use is limited to the number of Authorized Users.
4.3 The Licensee obtains the right of use after payment is received by the Licensor.
4.4 The Licensee may purchase additional user licences at any time on payment of the appropriate fee to the Reseller or the Licensor. The Licensee is aware that the number of Authorized Users must be equal or higher to the number of Authorized Users of the respective Atlassian Software; otherwise the Software will no longer function.
4.5 The Licensee is authorized to create the backup copies required for a safe operation of the Software. The backup copies shall be stored in a secure place. Copyright notices and marks shall not be deleted, modified, and/or eliminated. Copies that are no longer needed shall be deleted or destroyed.
4.6 The Licensee shall only be entitled to decompile the interface information of the Software within the statutory limits under German Copyright Law and only if it has notified the Licensor of its plan in writing and has unsuccessfully asked for the provision of the necessary interface information granting at least a two week grace period. All knowledge and information that the Licensee obtains on the Software in connection with the decompiling process is subject to the confidentiality obligations pursuant to sec. 10. Prior to involving a third party, the Licensee shall provide the Licensor with a written statement from such third party in which the same agrees directly vis-à-vis the Licensor to comply with the rules set forth in this sec. 4 and sec. 10.
4.7 All forms of exploitation, in particular, the renting, lending and distribution in physical or immaterial form, use of the Software by and on behalf of third parties (e.g., by outsourcing, hosting, software as a service) are not permitted without the prior written consent of the Licensor.
4.8 The Software can include Open Source software components to the extent that this does not interfere with the contractual use of the Software. Open Source software that the Licensor provides to the Licensee is primarily subject to the corresponding Open Source license terms and conditions that are indicated in the system requirements of the Software.
5. Intellectual Property and Ownership
5.1 The Software is legally protected. The Licensor is the sole owner of any copyrights, patent rights, trademark rights and any other ancillary copyrights in and to the Software.
5.2 The Licensor shall at all times retain ownership of the Software as originally downloaded by the Licensee and all subsequent downloads of the Software by the Licensee. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) is and shall remain the property of the Licensor. The Licensor has and retains all rights, titles, and interests, including all intellectual property rights, in and to the Software (including all No-Charge products), its "look and feel", any and all related or underlying technology, and any modifications or derivatives.
6. Payment and Payment Terms
6.2 The Licensor may require additional reasonable compensation for additional expenditure caused by the Licensee's conduct in breach of contractual obligations or by the Licensee's failure to cooperate at all, in good time or as agreed, by the Licensee's use of the Software contrary to the intended purposes or the terms this Customer Agreement, or by the subsequent amendment or expansion of performance demands by the Customer. This shall not apply where the Licensee is not responsible for the additional expenditure.
6.3 The Licensee may only make a set-off against claims that are not disputed by the Licensor or have been established with final force. Except in the area of sec. 354a of the German Commercial Code (HGB), the Licensee may assign claims under this Customer Agreement to third parties solely with the prior written consent of the Licensor. The Licensee has a right of retention or the defence of non-performance of the agreement solely within the context of this Customer Agreement.
7. Maintenance and Support
7.2 A new version of the Software of equal value or the previous version of the Software of equal value and without defects shall have to be accepted by the Licensee if it can be reasonably expected to do so.
7.3 The Licensor makes available new releases of the Software from time to time at its own choice. It may happen that new releases do not contain all functionalities of previous releases or do not have full downward compatibility to previous versions of the Software. The Licensee can decide at its own choice to use new releases, unless sec. 3.3 or sec. 3.4 apply. In case the Licensee uses new releases this Agreement applies to such releases as well. Bugs will be fixed by releasing a new version of the Software which contains the fix.
8. Warranty (Gewährleistung) Disclaimer
8.1 The Licensor gives no guarantee and makes no representation as to the correctness or completeness of the Product.
8.2 The Software is provided on an "as is" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or fitness for a particular purpose.
8.3 In the event of defects, the Licensor initially has a right to supplementary performance. At the discretion of the Licensor, supplementary performance may be conducted either by rectifying the defect, by delivery of software that is free from this defect or by informing the Licensee of a way to avoid the effects of the defect.
8.4 The Licensor shall not be liable for service failures, delays, interruptions and/or other problems inherent in the use of IT systems outside the reasonable control of the Licensor to the maximum extent permitted by law. The Licensor does not make any representation, warranty or guarantee as to the quality, reliability, suitability, performance, availability, completeness or accuracy of the Software or that
(a): the products will operate in combination with other hard- or software systems
(b): the use of the Software will be uninterrupted, secure or free of errors
(c): stored or presented data will be accurate and reliable
(d): errors or defects will be corrected on a schedule not controlled by the Licensor
9.1 The Licensor shall pay damages and compensation for futile expenses, no matter on what legal ground, solely as follows:
9.2 Liability shall be unlimited in case of intent.
9.3 In case of gross negligence, the liability shall be in the amount of the typical damage foreseeable at the time of conclusion of this Agreement.
9.4 In case of a negligent breach of a material obligation the fulfilment of which enables proper performance of this agreement in the first place, on fulfilment of which the Licensee generally relies and is entitled to rely and a breach of which jeopardizes achievement of the purpose of the contract (material obligation), the liability shall be in the amount of the typical damage foreseeable at the time this Agreement was concluded; however, not exceeding EUR 1.000.000,00.
9.5 In all other cases of negligent breaches of obligations by the Licensor, no liability shall arise.
9.6 In case of injury to life, limb or health and where claims under the German Product Liability Act are concerned, the statutory provisions shall apply.
9.7 Irrespective of the amount, the limitations of liability also apply to damage attributable to serious failure by the Licensor's management to provide proper organizational channels.
9.8 The Licensor shall be at liberty to raise the defense of contributory negligence. In particular, the Licensee is responsible for backing up its data regularly. In case of data loss which is the Licensor's fault it shall therefore be liable solely for the costs of duplicating the data from the backup copies to be created by the Licensee and for the recovery of data which would have also been lost if the data had been backed up properly.
9.9 Claims due to defects of quality and/or title shall regularly become statute-barred within 12 months after delivery. In cases of sec. 9.2, 9.3 or 9.6, the limitation period for claims due to this defect is three years.
10. Confidentiality and Data Protection
10.1 The parties agree to treat in confidence, also beyond the end of this Customer Agreement, all Confidential Information, of which they obtain knowledge or which is provided to them prior to or during performance of the contract by the other party, unless such Confidential Information becomes publicly known without a breach of the confidentiality obligation. The parties shall keep and safeguard Confidential Information in a manner that excludes access by third parties. The Licensee shall only enable access to Confidential Information for those employees and authorized persons who require such access in order to perform their work responsibilities. Such persons shall be instructed about the confidentiality obligation.
10.2 Where, in the course of providing its contractual obligations under this Customer Agreement, the Licensor processes personal data for which the Licensee is the responsible party or where access to such personal data is possible, the parties shall in advance enter into an agreement on contracted data processing that complies with the relevant statutory requirements.
10.3 The Licensor may use the Licensee's contact data (name, email address) for sending the Licensee emails with information regarding the Software during an active license or evaluation term and a period of 6 months after its end. The Licensee can deny this right at the time of the conclusion of this Agreement as well as at any time afterward by submitting a request via email to firstname.lastname@example.org, requesting the type of information the Licensee does not want to receive any more.
10.4 The information the Licensee provides will be used by the Licensor to provide support services, to promote its services and to fulfill legal obligations (e.g. accounting). Information about the Licensee will not be shared with third parties. The Licensor will hold the personal data the Licensee provided for 3 years after the expiration of an active license, for 1 year after the expiration of an evaluation license. The Licensee has a right to access its personal information, to object to the processing of its personal information, to rectify, to erase, to restrict, to port its personal information and to apply to a data protection authority. Any requests or objections regarding data protection issues the Licensee may direct to the Licensor's data protection officer, whom the Licensee may contact for instance under email@example.com.
11. Choice of Law and Venue
This Customer Agreement shall be governed exclusively by German law excluding its conflict of laws rules and the UN Sales Convention (CISG). Exclusive venue for both parties shall be the registered office of the Licensor.
Appendix A - Trial Period
The Licensee may test the Software free of charge for a period of 30 days ("Trial Period") by downloading the Software from the Atlassian Marketplace. With the expiry of the Trial Period the Software will automatically stop functioning.
The following provisions shall apply to the Trial Period and take precedence over the general provisions of the Agreement set in secs. 1 to 11 above:
The Licensor is not obliged to any maintenance or support. The statutory provisions of the German Civil Code shall apply in respect of the Licensor's warranty and liability obligations.
The Licensor grants the Licensee a worldwide, non-exclusive, right of use of the Software for 30 days - solely on hardware systems owned, leased or controlled by the Licensee.
The right granted to the Licensee pursuant to no. 2 of this Appendix A shall commence with the download of the Software.
The Licensee shall not be entitled to transfer the Software or any parts thereof to a third party.
If you have any questions or concerns, feel free to contact avono at any time.
Breite Straße 2
Phone: +49 711 280 757-0