This EULA is a binding legal agreement between Bitwelt, a provider of downloadable and cloud-based applications under Bitwelt brand name through the Atlassian Marketplace or any other means that interoperate with applicable products manufactured by Atlassian Pty Ltd (“Atlassian”), and you (either an individual or a single legal entity as the details provided to Licensor upon purchase (hereinafter “Licensee” or “you”)) for the materials accompanying this EULA, including the accompanying computer software, associated media, printed materials and any “online” or electronic documentation.
1. Scope of the Agreement
This EULA governs (a) Licensor’s commercially available downloadable software products sold, or made available at no charge (“Software”), (b) Licensor’s Software provided in a hosted or cloud-based environment (“Hosted Services”), and (c) any support services provided by Licensor relating to the Software or Hosted Services. Software and Hosted Services, together with related Documentation, are referred to herein as “Products”.
2. Account Registration
You may need to register on the Atlassian Marketplace (https://marketplace.atlassian.com) in order to place orders or access or receive any Products. Any registration information that you provide must be accurate, current and complete. You must also update your information so that Licensor may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
Your order through the Atlassian Marketplace or with an authorised Reseller (“Order”) will specify your authorised scope of use for the Products, which may include: (a) the defined number of installations, the number of specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorised Users”), the number of authorised servers, the number of unique data set platforms, and/or other defined resource utilisation limitations, (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (all of the above, as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support Services renewal, or purchases you make to increase or upgrade your Scope of Use. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product.
4. Grant of License
The Products are licensed, not sold, and no ownership right is conveyed to you, irrespective of the use of terms in this EULA such as “purchase” or “sale”.
This EULA grants you the following rights:
Standard Use. For other than No-Charge Products, the Licensor grants you a perpetual (subject to termination for breach), worldwide, non-exclusive, non-transferable, non-sub licensable license to install and use the Software in object code only, limited to the Scope of Use as designated in your Order.
Hosted Services. The Licensor grants you a monthly (paid in advance) subscription for worldwide, non-exclusive, non-transferable, non-sub licensable use of the Hosted Services, subject to automatic renewal for successive monthly terms unless either Licensor or you notifies the other of non-renewal or Licensor ceases to make a particular Hosted Service available. If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination. You acknowledge that Hosted Services are on-line, subscription-based products, hosted by Licensor and/or Atlassian, and that Licensor and/or Atlassian may make changes to the Hosted Services from time to time.
No-Charge Products. The Licensor may offer you a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable limited license for certain Products at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms specified by Licensor and is only permitted for the evaluation period designated by Licensor. After the evaluation period is expired you must abide by the Standard Use rights, or must remove and delete all copies of the Software in your possession. You may not use No-Charge Products for competitive analysis or similar purposes. Licensor may terminate your right to use No-Charge Products at any time and for any reason in its sole discretion, without liability to you. You understand that any pre-release and beta products (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Licensor makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Licensor may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this paragraph. All information regarding the characteristics, features or performance of Beta Versions constitutes Licensor’s Confidential Information. To the maximum extent permitted by applicable law, Licensor disclaims all obligations or liabilities with respect to No-Charge Products, including any Support Services, warranty, and indemnity obligations.
Your license rights under this EULA are non-exclusive, non-transferable and non-sublicensable. You may not sell, transfer or convey the Software to any third party without Licensor’s prior express written consent. Licensor reserves all rights not expressly granted to the Licensee in this EULA.
Standard Use licensees are permitted to make one (1) copy of the Software for data protection, archiving and backup purposes only and for no other purpose.
You may only install the Software and make the Software available for use on hardware systems owned, leased or controlled by you, or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this EULA.
This EULA applies whether you purchase Products directly from Licensor, through the Atlassian marketplace, through an authorized Reseller or otherwise. If you purchase through a Reseller, your license rights shall be as stated in the Order placed by Reseller for you, and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Licensor’s behalf, and Licensor is not bound by any obligations to you other than what is included in this EULA.
5. Third-Party Software
You acknowledge the Products may contain software licensed by Licensor from third parties, including open source software, and embedded in the Products, and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of the third party software by you which is not in accordance with the use of the Products as permitted under the terms of this EULA. In such circumstances you must consult the relevant third party to acquire any necessary licenses and consents in relation to your use of the third party software.
The Software uses, requires and depends on various third party APIs. Licensor disclaims any liability for any failure or limitations of these APIs or services. Atlassian, or any other API provider, may remove the API end points required for the Software to function properly. Licensor disclaims any liability for the consequence of such actions by such third parties.
6. Price and Payment
If you are not using free product, you must pay the license fee within the period indicated in the applicable invoice or as otherwise provided in Licensor’s pricing terms as published on the Atlassian Marketplace. Failure to pay any license fees by the due date will result in the immediate termination of the license(s) granted under this EULA.
7. Support Services
Licensor may provide you with online support services related to the Products (“Support Services”), in its discretion and for the sole purpose of addressing technical issues relating to the use of the Products. Support Services also include installation, troubleshooting problems with Bitwelt apps, identifying intermediate solutions. When accepted by you, any such Releases will be considered part of the Products and subject to the terms of this EULA.
The Initial Support Period for each Product is for twelve (12) months starting at the time each Product is purchased, and may be renewed for additional twelve (12) month periods (each, a “Renewal Support Period”) at the then-current rate for Support Services. Renewal Support Periods commence upon the expiration of the prior Support Period regardless of when the Product is purchased.
Use of Support Services, if any, is governed by Licensor’s policies and programs described in any user manual, in online documentation, and/or other Licensor-provided materials. Any supplemental software code provided to you as a part of Support Services will be considered part of the Products and subject to the terms of this EULA.
All deliveries of Software will be electronic. For the avoidance of doubt, you are responsible for the installation of any Software.
Licensor encourages feedback from its customers. If you have any feedback regarding your purchase or use of the Products, please provide that feedback to Licensor at firstname.lastname@example.org.
8. Data Security & Privacy
Licensor values your privacy and is committed to secure private information from loss, misuse, unauthorized access, disclosure, alteration and destruction. Licensor will not sell or otherwise redistribute to third parties the information Licensor collects from you, as described in this Section.
Licensor constantly strives to improve its Products. To do so, Licensor needs to measure, analyze, and aggregate how users interact with the Products, such as usage patterns and characteristics of its user base. Licensor collects and uses analytics data regarding your use of the Products.
You agree that Licensor may collect and use technical data and related information, including without limitation, technical information relating to your device, system, and Products, that is gathered periodically to facilitate the provision of software updates, product support, marketing efforts and other services and communications to you related to the Products, including providing you with information about services, features, surveys, newsletters, offers, promotions; providing other news or information about us and our select partners; and sending you technical notices, updates, security alerts, and support and administrative messages. Licensor may use this technical data and related information, as long as it is in a form that does not personally identify you, except to the extent necessary to provide you with support, or communications to improve its products or to provide services or technology to you. Licensor agrees to handle your data in accordance with (i) all applicable laws; and (ii) privacy and security measures reasonably adequate to preserve your data’s confidentiality and security. Licensee may opt out of promotions by sending an email to email@example.com. Requests to opt out may take thirty (30) calendar days to process.
You retain all right, title and interest in and to any data, content, code, video, images or other materials of any type (“Your Data”) that you upload, submit or otherwise transmit to or through the Hosted Services or through Licensor’s online support systems (including the Defect Tracker and any other related platforms used to collect customer feedback or to provide support). Subject to the terms of this EULA, you grant Licensor a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service.
Licensor agrees (i) to handle Your Data in accordance with all applicable laws; and (ii) not share Your Data with third parties except as required by law. You acknowledge and agree that Licensor may disclose personally identifiable information under special circumstances, such as to comply with law.
You may terminate your license to the Products at any time by destroying all your copies of the Software or ceasing your access to the Hosted Services. Your license to the Products shall automatically terminate if you fail to comply with the terms of this EULA. Upon termination of your license, you are required to remove all Software from your computer systems and destroy any copies of the Software in your possession.
The Products and all copies thereof are protected by copyright and other intellectual property laws and treaties. Licensor or its relevant third parties own the title, copyright, and all other intellectual property rights in the Products and all subsequent copies of the Products.
All title and copyrights in and to the Products (including but not limited to any images, icons, text files, pdfs or other static non-code assets contained within the Products), the accompanying printed materials, and any copies of the Products, are owned by Licensor or its suppliers.
Other than as allowed by this EULA, you may not (i) reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide non-Authorized Users with access to the Products in whole or part, (ii) use the Products for the benefit of any third party, (iii) incorporate any Products into a product or service you provide to a third party, (iv) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (v) remove or obscure any proprietary notices on the Products or any permitted copies of the Products , or (vi) publicly disseminate information regarding the benchmarking performance of the Products.
You may not copy or embed elements of the Source Code into other applications, or publish, transmit or communicate the Source Code to other parties other than yourself or the entity you represent.
Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Licensor has and retains all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Licensor, including without limitation as they may incorporate Feedback.
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 identified as confidential at the time of disclosure. Any technology and any performance information relating to the Products shall be deemed Confidential Information of Licensor 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). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Products.
13. Publicity Rights
The Licensee grants Licensor the right to include the Licensee’s company name, logo, and/or likeness that you provide during registration, and any review that Licensee may provide (in full or in part) to Licensor, within Product promotional material and on Licensor’s web site. Licensee can revoke this right at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from future Product promotional material. Requests made after purchasing may take thirty (30) calendar days to process.
14. Disclaimer of Warranties
Save as provided in Sections 16 and 17 below, the Products are provided on an “as is” and “as available” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance, merchantability, fitness for a particular purpose, or title. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. Licensor shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Licensor. To the maximum extent permitted by law, Licensor does not make any representation, warranty or guarantee that: (a) the use of the Products will be secure, timely, uninterrupted or error-free; (b) the Products will operate in combination with any other hardware, software, system, or data; (c) the Products will meet your requirements or expectations; (d) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted; (e) errors or defects will be corrected; or (f) the Products (or any server(s) that make a Hosted Service available) are free of viruses or other harmful components.
15. Cancellation Policy
Licensor’s customary business practice is to allow customers to cancel license within the free trial time of 30 days.
16. Infringement; Indemnification
If you purchase a Standard Use license, and if the Software becomes, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party right, Licensor may, at its option and in its discretion: (i) procure for Licensee the right to use the Software free of any liability; (ii) replace or modify the Software to make it non-infringing; or (iii) refund any license fees paid by you for the current Support Period for that Software.
Licensee will defend or settle, at Licensee’s expense, any action brought against Licensor based upon the claim that any modifications to the Software or combination of the Software with other, third-party, products infringes or violates any third party right, and only to the extent that such modification or combination contributes to such claim; provided, however, that: (i) Licensor shall notify Licensee promptly in writing of any such claim; (ii) Licensor shall not enter into any settlement or compromise any such claim without Licensee’s prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Licensor shall provide Licensee with information and reasonable assistance, at Licensee’s request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Licensor attributable to such claim.
Licensee agrees to indemnify and hold Licensor, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of Licensee’s use of the Software, or Licensee’s violation of the EULA or any rights of a third party.
Licensor assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney’s fees for, any claim based upon any modifications to any of the Software not approved by Licensor or combination of any of the Software with products not approved by Licensor, and only to the extent that such modification or combination contributes to such claim.
17. Limitation of Liability
Except for the indemnification obligations of Section 16 or breach of Sections 6 or 10, neither party will be liable to any person, with respect to any loss, damage, cost, expense or other claim, for any consequential (such as loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data), indirect, special, punitive or other damages in relation to the Products including, without limitation: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in the Products); (b) any delay, interruption or other failure in the provision of a Product; or (c) any change in the form or content of a Product. All the foregoing limitations shall apply even if Licensor has been informed of the possibility of such damages.
In no event will Licensor’s aggregate liability under any claims arising out of this EULA exceed the fees paid by you for the current Support Period, except where not permitted by applicable law, in which case Licensor’s liability shall be limited to the maximum extent allowed by such applicable law.
Except for each party’s indemnification obligations or breach of Sections 6 or 10, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Section 15 are not allowed by applicable law, then the liability of Licensor, and the remedy of Licensee, shall be limited to: (i) the re-supply of any defective Product; or (ii) the refund of the license fees paid by you for the current Support Period for such defective Product.
These limitations will apply to you even if the remedies fail of their essential purpose.
18. Dispute Resolution
18.1. Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
18.2. Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of Germany without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 18.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Germany and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Germany generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Licensor may bring a claim for equitable relief in any court with proper jurisdiction.
18.3. Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 18.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.4. Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.
20. No Waiver
No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorised representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
Licensee may assign this EULA to succeeding parties in the case of a merger, acquisition or change of control; provided, however, that in each case, (a) Licensor is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EULA and (c) upon such assignment the assignee makes no further use of the Product(s) licensed under this EULA. Licensor may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this EULA.
22. Revisions to EULA
Licensor may update, modify or amend (together, “Revise”) this EULA from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, Licensor will use reasonable efforts to notify you by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, on Atlassian Marketplace (https://marketplace.atlassian.com) or within the Licensor’s then currently published product documentation. If Licensor revises this EULA during your term of your license or subscription, the revised version will be effective upon your next renewal of a License Term, Support Services, Hosted Services or Subscription Term, as applicable. In this case, if you object to any revisions, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the revised EULA is required for you to continue using the No-Charge Products. You may be required to click through the updated EULA to show your acceptance. If you do not agree to the revised EULA after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the EULA in effect at the time of the Order. You may not revise this EULA without Licensor’s written agreement (which may be withheld in Licensor’s complete discretion).
23. Entire Agreement
This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein. This EULA may not be modified or amended by you without Licensor’s written agreement (which may be withheld in Licensor’s complete discretion).
In the event of a conflict between the terms of this EULA and the terms of any open source licenses applicable to the Software, for the specific terms in conflict the terms of the open source licenses shall control with regard to the Software, or part-thereof.