AxisAgile End User License Agreement for Atlassian Add-ons

Last updated June 2018

IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS IN THIS END USER LICENSE AGREEMENT (“EULA”). YOU ARE NOT AUTHORISED TO USE THIS SOFTWARE UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS EULA.

This EULA is a binding legal agreement between AxisAgile Pty Ltd (ABN 64 156 314 215) (“AxisAgile”), a provider of downloadable and cloud-based applications under the AxisAgile Apps brand name through the Atlassian Marketplace or any other means that interoperate with applicable products manufactured by Atlassian Pty Ltd (“Atlassian”) and each individual or entity whose details are provided to AxisAgile upon purchase (“you”).

This EULA governs your access to and use of AxisAgile’s materials, including the accompanying computer software, associated media, printed materials and any “online” or electronic documentation made available to you. Your access to the materials is subject to your purchase or licence of the applicable products manufactured by Atlassian.

By clicking on the “I Accept” button at the time of installation, you warrant that you have reviewed and understand this EULA, including Axisagile’s Privacy Policy, and agree to be bound by its terms, and if doing so on behalf of a company or organisation, that you have the authority to do so. If you do not accept the terms of this EULA, you must not install, copy, download or otherwise use our software.

This is a “Publisher EULA” as referred to in the Atlassian Marketplace Terms of Use.

1. Scope of the Agreement

This EULA governs:

(a) AxisAgile’s commercially available downloadable software products sold, or made available at no charge (“Software”),

(b) AxisAgile’s Software provided in a hosted or cloud-based environment (“Hosted Services”), and

Software and Hosted Services, together with any related Documentation, are referred to in this Agreement as “Products”.

2. Account Registration

You may need to register on the Atlassian Marketplace (found https://marketplace.atlassian.com) in order to place orders or access or receive any Products. Any registration information you provide must be accurate, current and complete. You must also update your information so that AxisAgile may send you notices, statements and other information via email or through your account. You are responsible for all action taken through your accounts.

3. Orders

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) number 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 Authorised 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”.

(a) 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 AxisAgile’s prior express written consent. AxisAgile reserves all rights not expressly granted to you in this EULA.

(b) Under this EULA AxisAgile grants you the following rights:

A. Standard Use. For other than No-charge Products, AxisAgile grants you a perpetual (subject to termination for breach), worldwide, non-exclusive, non-transferable, non-sublicensable license to install and use the Software in object code only, limited to the Scope of Use as designated in your Order.

B. Hosted Services. AxisAgile grants you a monthly or yearly (paid in advance) subscription for worldwide, non-exclusive, non-transferable, non-sublicensable use of the Hosted Services, subject to automatic renewal for successive terms unless either AxisAgile or you notifies the other of non-renewal or AxisAgile 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 online, subscription-based products, hosted by AxisAgile and/or Atlassian, and that AxisAgile and/or Atlassian may make changes to the Hosted Services from time to time.

C. No Charge Products. AxisAgile 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 AxisAgile and is only permitted for the evaluation period designated by AxisAgile. 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. AxisAgile 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. AxisAgile makes no promises that any Beta Versions will ever be made generally available. In some circumstances, AxisAgile 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 AxisAgile’s Confidential Information. To the maximum extent permitted by applicable law, AxisAgile disclaims all obligations or liabilities with respect to No-Charge Products, including any Support Services, warranty, and indemnity obligations.

(c) 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.

(d) 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.

(e) This EULA applies whether you purchase our Products directly from AxisAgile, through the Atlassian marketplace, through an authorised 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 authorised to make any promises or commitments on AxisAgile’s behalf, and AxisAgile is not bound by any obligations to you other than what is included in this EULA.

(f) Using our Products may be prohibited or restricted in certain countries. You are responsible for complying with the laws and regulations of the country from which you access or use the Products.

5. Third party Software

(a) You acknowledge the Products may contain software licensed by AxisAgile 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.

(b) The Software uses, requires and depends on various third party APIs. AxisAgile 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. AxisAgile disclaims any liability for the consequence of such actions by such third parties.

(c) If your AxisAgile Product is cloud-based, AxisAgile intends that access to that Software should be available at all times, however it may be possible that the Product is unavailable due to maintenance or other development activity. AxisAgile does not provide any guarantee on uptime and availability of the Product. Where possible, AxisAgile will provide notice to you of any maintenance or development activity in advance on its website: https://axisagileapps.com/status.

6. Price and Payment

You agree to pay the applicable Fees directly to Atlassian as required at the time of purchase of the Order in order to enable you to access and use the Software. Payment of the Fees will be in accordance with the applicable Atlassian Terms.

AxisAgile may from time to time change its pricing structure or payment methods at its sole discretion.

If you have not previously paid the license fee for the Product, then you must pay the license fee within the period indicated in the applicable invoice or as otherwise provided in AxisAgile’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

(a) AxisAgile 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 access to bug fixes, patches, modifications, or enhancements (together, “Releases”) to the Products that AxisAgile makes generally commercially available to you. When accepted by you, any such Releases will be considered part of the Products and subject to the terms of this EULA.

(b) AxisAgile’s Support Services, if any, are available for your Order for the duration of the active paid subscription purchased by you.

(c) Use of Support Services, if any, is governed by AxisAgile’s policies and programs described in any user manual, in online documentation, and/or other AxisAgile-provided materials. Any supplementary 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.

(d) If the software is installed on your device or server, you must access the site to download any available updates. By installing the Software, you agree to automatically request and receive updates from AxisAgile or third-party servers. You consent to such automatic updating, and agree that the terms of this Agreement will apply to all such Releases.

(e) All deliveries of Software will be electronic. For the avoidance of doubt, you are responsible for the installation of any Software.

8. Data Security & Privacy

(a) AxisAgile values your privacy and how we collect, use, disclose and handle your information is outlined in our Privacy Policy. The most recent version of our Privacy Policy can be found [link]. This Privacy Policy also explains the options available to you regarding AxisAgile’s use of your information and how you can access and update this information.

(b) AxisAgile will use commercially reasonable efforts to protect the information you submit via the Services, including but not limited to user information or information otherwise collected by AxisAgile (collectively referred to as Data). AxisAgile may use, and you permit AxisAgile to use this Data as required to provide the Services to you.

(c) You grant AxisAgile a non-exclusive, worldwide licence to any intellectual property rights within your Data in order to access, use, copy, transmit, reference, disclose or back-up your Data or otherwise for purposes including:

(i) To enable you to access and use the Services;

(ii) For AxisAgile’s administrative, support and training purposes;

(iii) In accordance with this Agreement or as otherwise required for AxisAgile to provide the Services including any modifications to the Data.

(d) If the processing of any of your customer or employee data (Company Personal Data) is governed by the General Data Protection Regulation 2016/679 (GDPR), you acknowledge and agree that in collecting, holding and processing Company Personal Data through the Product, AxisAgile is acting as the data processor for the purposes of the GDPR. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process Company Personal Data in accordance with this Agreement and the GDPR, if it applies.

(e) Using our Products may be prohibited or restricted in certain countries. You are responsible for complying with the laws and regulations of the country from which you access or use the Products.

9. Termination

(a) 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.

(b) It is your responsibility to retrieve all necessary Data from the Product prior to termination.

(i) You breach any of the terms of this Agreement;

(ii) You do not make payment prior to the payment due date

(iii) AxisAgile is no longer a Vendor in the Atlassian Marketplace as defined in Atlassian’s Terms;

(iv) As a result of an event outside of AxisAgile’s control, AxisAgile is unable to supply the Product in accordance with this Agreement.

(d) On termination, AxisAgile may retain your Data as required by law. By accepting the terms of this Agreement, you authorise AxisAgile to retain or destroy documents in accordance with the statutory periods, or on termination of this Agreement.

10. Returns

Any returns of the Software are in accordance with Atlassian’s return policy, found here: https://www.atlassian.com/licensing/purchase-licensing#payments&refunds-6

You may request a refund up to 30 days from the original date of purchase. Refunds are not available after 30 days.

11. Copyright

(a) The Products and all copies thereof are protected by copyright and other intellectual property laws and treaties. AxisAgile 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.

(b) Title to, and all intellectual Property rights in the Product and any documentation relating to the Product remain the property of AxisAgile. Your right to use such Intellectual Property is subject to the terms of this EULA.

(c) 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-Authorised 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.

(d) 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.

12. Confidentiality

(a) You agree that all code, inventions, know-how, business, technical and financial information disclosed to you by AxisAgile constitute the confidential property of AxisAgile (“Confidential Information”). Any intellectual property, the underlying technology, and any performance information relating to the Products shall be deemed Confidential Information without any marking or further designation. Except as expressly authorised by AxisAgile, you will hold in confidence and not use or disclose any Confidential Information.

(b) Your nondisclosure obligation shall not apply to information that you can document: (i) was rightfully in your possession or known to you prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of your own; (iii) is rightfully obtained by you from a third party without breach of any confidentiality obligation; or (iv) is independently developed by you or your employees who had no access to such information. You 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 AxisAgile).

(c) You acknowledge 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 you, AxisAgile 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

You grant AxisAgile a non-exclusive, worldwide, royalty-free, irrevocable license to use any of your Intellectual Property which subsists in any materials you provide in connection with your use of the Product, including copyright in any third party logos or other materials, for any promotion, publicity, marketing or advertising purposes (Promotional License). You may revoke this Promotional License at any time by emailing us at support@axisagileapps.com, and we will action your request within thirty (30) days.

14. Export Restrictions

You may not use or otherwise export or re-export any Products except as authorised by the laws of the jurisdiction in which the Product was obtained.

15. US Government Users

If You are a U.S.Government or Education Sector end user, AxisAgile provides the Products to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted to you by AxisAgile for the Products are the same as the rights AxisAgile customarily grants to others under this EULA. There are no special pricing or versions for Government or Education sector users.

16. Warranties

(a) AxisAgile’s 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, save as provided in this EULA. 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. AxisAgile 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 AxisAgile.

(b) To the maximum extent permitted by law, AxisAgile 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.

17. Infringement and Indemnity

(a) You will defend or settle, at your own expense, any action brought against you 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) AxisAgile shall notify you promptly in writing of any such claim; (ii) AxisAgile shall not enter into any settlement or compromise any such claim without your prior written consent; (iii) You shall have sole control of any such action and settlement negotiations; and (iv) AxisAgile shall provide You with information and reasonable assistance, at your request and expense, necessary to settle or defend such claim. You agree to pay all damages and costs finally awarded against AxisAgile attributable to such claim.

(b) You agree to indemnify and hold AxisAgile and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claims by third parties, and any related damages, losses or costs (including reasonable legal fees and costs), arising out of your use of the Software, or your violation of this EULA or any rights of a third party.

(c) AxisAgile assumes no liability for, and shall have no obligation to defend You or to pay costs, damages or legal fees for, any claim based upon any modifications to any of the Software not approved by AxisAgile or combination of any of the Software with products not approved by AxisAgile, and only to the extent that such modification or combination contributes to such claim.

18. Limitation of Liability

(a) Except as outlined in this EULA, 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 AxisAgile has been informed of the possibility of such damages.

(b) In no event will AxisAgile’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 AxisAgile’s liability shall be limited to the maximum extent allowed by such applicable law.

(c) 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.

19. Dispute Resolution

This EULA is governed by the laws of the State of New South Wales, and the Commonwealth of Australia. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts of New South Wales, Australia.

20. Severability

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.

21. 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.

22. Assignment

This EULA is personal to You. You must not assign or deal with the whole or any part of your rights and obligations under this EULA without the prior written consent of AxisAgile. Any dealing in breach of this clause is of no effect.

OR You 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) AxisAgile 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. AxisAgile 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.

23. Revisions to this EULA

AxisAgile 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, AxisAgile 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 or within AxisAgile’s currently published product documentation. If AxisAgile 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 AxisAgile’s written agreement (which may be withheld in Licensor’s complete discretion).

24. Entire Agreement

This EULA constitutes the entire understanding 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.

25. Feedback

AxisAgile encourages feedback from its customers. If you have any feedback regarding your purchase or use of the Products, please provide that feedback to us at support@axisagileapps.com.

For any questions about this EULA or notices, please contact AxisAgile at support@axisagileapps.com.