Last changed: 03 Aug 2020
Art. 1 Scope of Application
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Our End User License Agreement ( |
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EULA) is |
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This License Agreement applies both to companies and legal entities under public law as well as to consumers. It applies to the provision of the Software free of charge (e.g., during a test phase) and to the purchase of a license of the Software for remuneration.
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To the extent that open source software has been integrated into the Software or is provided to Licensee by yasoon together with the Software, the use of such software shall be primarily subject to the applicable open source license terms that yasoon will provide to Licensee upon request. Alternatively, the terms of use set forth in this License Agreement shall apply in a supplementary manner.
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General terms and conditions of Licensee deviating from this License Agreement will not become a part of this Agreement, including all cases where yasoon does not expressly object to them.
Art. 2 Test Phase, Conclusion of License Agreement
Licensee is granted the right to use the Software for testing purposes during an initial term of 30 days following the download; this use will not be subject to license fees. During this test phase, Licensee may discontinue the use of the Software at any time. Licensee’s right to use the Software free of charge will automatically expire at the end of the test phase and Licensee shall delete any Software copies, unless it purchases a license.
In the event that Licensee purchases a license of the Software via the Internet, the presentation of the Software on the yasoon website does not constitute a legally binding offer by yasoon, but only a non-binding invitation to Licensee to submit an offer on its part. When the ordering process is completed by Licensee by clicking the “Pay” button, Licensee submits a binding offer for the conclusion of a License Agreement that is subject to license fees. Prior to the completion of the ordering process, Licensee will have the opportunity to check its ordering data for errors and, if applicable, make corrections and/or abort the ordering process.
yasoon will confirm the receipt of the electronic order from Licensee by emailing an automatic receipt confirmation. In this receipt confirmation, yasoon also declares that Licensee’s offer was accepted so that a binding License Agreement is concluded when Licensee receives this email confirmation. In addition to the ordering data of Licensee, this email confirmation will also include the invoice and this License Agreement as (printable) attachments. yasoon will activate the Software for Licensee’s use directly upon the completion of the ordering process.
yasoon will store Licensee’s individual ordering data electronically. Licensee can print its ordering data in the course of the ordering process and will automatically receive them as part of the receipt confirmation. The License Agreement in its then current version may also be retrieved and printed from the yasoon website at any time. The Agreement is concluded in the English language.
Art. 3 Right to Revocation
Consumers that have purchased a license of the Software against remuneration have the right to revoke the License Agreement. Consumers are individuals that enter into a legal transaction for a purpose that cannot be primarily attributed to their commercial nor self-employed activities. For further information on consumer’s right to revocation please refer to the Exhibit of this License Agreement.
Art. 4 Provision of Software and Pre-Conditions for its Use
When Licensee purchases a license, yasoon will activate the Software for permanent use. The Software will be provided to Licensee exclusively in machine code (executable version); Licensee has no right to receive or use the source code. User documentation is available to Licensee in the English language in the form of a help portal on the yasoon website. Licensee will be responsible for installing the Software on its system.
The scope of functionality of the Software is set forth in the product description published by yasoon and in the user documentation. Prior to the conclusion of the License Agreement, Licensee has verified that the Software and its functionality meet its requirements and expectations. It is familiar with the key features and the operating conditions of the Software.
In the event that Licensee orders Software updates it will be responsible for their installation. If an update replaces a previous Software version, Licensee’s rights under this License Agreement will expire with regard to the replaced Software version as soon as it has installed the update.
The system requirements that are required for the trouble-free use of the Software at Licensee’s facilities are described on the yasoon website. Licensee bears the sole responsibility for meeting these system requirements. yasoon expressly advises Licensee that it is not possible to check and test the Software for its compatibility with and operability in all system environments that may be used. yasoon does not warrant the future operability of the Software, e.g., following a hardware or operating system change at Licensee’s facilities.
The Software will be embedded in Licensee’s software landscape as an add-on or plug-in (in particular, in connection with the email program Microsoft Outlook). Due to this close technical integration and interdependencies with other programs of Licensee, yasoon does not warrant the future operability, interoperability and compatibility of the Software in the event of a release change in Licensee’s software environment. In particular, a release change within Licensee’s software environment (especially when Microsoft Outlook is updated) may require Licensee to acquire and install a new update of the Software.
Art. 5 Grant of Rights
yasoon reserves any copyrights and other rights in and to the Software (including all updates) for itself and/or its licensors with regard to the business relationship with Licensee. Licensee is granted a non-exclusive right to use the Software in accordance with the provisions set forth below subject to the condition precedent of payment of the full licensee fees.
yasoon grants Licensee a non-exclusive, indefinite and world-wide right to use the Software for its own purposes. Licensee has the right to use the Software with the licensed number of Named Users. “Named User” means that access to the Software is restricted to the Licensee itself and/or the individuals that were named by Licensee and for whom valid licenses had been acquired under this License Agreement. Licensee and/or the Named Users are authorized to install the Software on the agreed number of devices and to load it into the memory of such devices to the extent required for the Software use within the licensed scope.
Licensee has the right to make the necessary backup copies of the Software. A backup copy on a moveable data medium shall be marked as such, and the copyright notice of the original data medium shall be attached to it. Licensee shall not change, modify or remove copyright notices contained in the Software or other notices, numbers, marks, or features serving the purpose of program identification.
yasoon reserves any other rights, in particular, the right to distribute the Software in any manner, including renting, the right to rearrange or modify the Software, and to make the Software publicly and non-publicly available (e.g., on a network). Any use of the Software by or on behalf of third parties (e.g., within the scope of data center operations, Software as a Service, cloud computing, etc.) requires the prior written consent from yasoon.
Prior to any decompiling for the purpose of achieving interoperability of the Software, Licensee shall request yasoon in writing to make available the necessary information and records within a reasonable period of time. Licensee is not permitted to decompile until the time period granted for providing information and records has expired without result and only within the statutory limits set forth in § 69e of the German Copyright Act. Prior to commissioning third parties with the decompiling of the Software, Licensee shall submit a written declaration from such third party to yasoon in which this third party agrees to be bound to confidentiality directly vis-à-vis yasoon.
Licensee shall not provide the Software to a third party, unless it fully and finally discontinues its own use of the Software. The temporary or partial transfer to third parties or the transfer to several third parties is not permitted. Any transfer of the Software requires the prior written consent from yasoon. yasoon shall grant its consent provided that Licensee submits a written declaration from the third party in which it agrees vis-à-vis yasoon to comply with the license terms, and if Licensee confirms in writing that it has provided all original copies of the Software to the third party and that it has deleted in an unrecoverable manner any Software copies that it had made itself.
With regard to test installations, Licensee’s rights to use are restricted to the term of the test period and to such acts that serve the evaluation of the state and properties of the Software, its suitability for the use intended by Licensee and the examination of its compatibility with the system and software environment of Licensee.
Any use of the Software that exceeds the rights granted to Licensee requires the prior written consent from yasoon. In the event of an exceeding use without this consent, yasoon may charge Licensee for the exceeding use (including in the past). Any other rights of yasoon due to the exceeding use remain unaffected.
Art. 6 License Fees
Prices quoted to consumers include the then-valid statutory value added tax, and prices quoted to business persons are subject to the applicable statutory value added tax (if applicable) plus any customs duties, charges or other public levies or taxes (if any).
If Licensee purchases a license yasoon will provide Licensee with the Software for payment of a one-time license fee or payment of a monthly/yearly recurring fee. The amount of the license fee is indicated on the offer submitted by yasoon and/or will be displayed to Licensee in the course of the online ordering process; alternatively, it is set forth in the product-specific yasoon pricelist that can be retrieved via the Atlassian Marketplace product listing. The license fee will become due for payment promptly upon the purchase of the Software license. The license fee will be collected via the Atlassian Marketplace.
In the event that yasoon provides professional services to Licensee (e.g., consulting services) they will be invoiced on a time and material basis subject to the agreed hourly rate, unless the parties have agreed otherwise. yasoon will issue invoices to Licensee for these services on a monthly basis at the beginning of the month following the service provision together with the activity reports customarily used by yasoon.
Art. 7 Claims for Defects
If Licensee is a consumer and purchases a license against remuneration, the following Articles 7, 8 and 10 below will not apply. In the event of Software defects, consumers have the right to assert unrestricted warranty claims according to the applicable statutory provisions.
In the event that yasoon provides the Software under a license for remuneration (purchase agreement), yasoon warrants that the Software complies with the description on the yasoon website, in the user documentation and in this License Agreement. Licensee shall promptly report any defects of the Software. The report shall include, to the extent possible, a comprehensible description of the error symptoms, supported by written records (e.g., error logs). To the extent that statutory provisions require Licensee to inspect the Software for defects and to notify yasoon, these obligations remain unaffected.
Defects within the meaning of this warranty clause shall only be such defects that are reproducible and caused by quality deficiencies of the Software. Thus, a functional impairment that, e.g., results from a change of the operating system, a release change within Licensee’s software environment, maloperation or other reasons for which Licensee is responsible shall not be deemed to be a defect. Furthermore, yasoon shall be released from its liability for defects if Licensee has modified the Software or used it in violation of the License Agreement, unless Licensee is able to show that the defect is not related to these circumstances.
In the event that a defect of the Software can be shown to exist, yasoon initially has the right and obligation to subsequent performance. At the option of yasoon, subsequent performance shall be fulfilled by the rectification of the defect, by making available an update or by providing to Licensee a reasonable possibility to avoid the consequences of the defect (workaround). In the event that a defect does not affect the Software functionality or only causes a slight impairment, yasoon has the right to rectify the defect by providing a new update within the scope of its scheduled release planning.
In the event that subsequent performance finally fails (for each notified defect no less than three (3) attempts are permissible) or if yasoon refuses to carry out activities for subsequent performance, Licensee has the right to either reduce the license fee or – in the event of a material defect – to rescind the License Agreement. Claims to damages and reimbursement of wasted expenditures are subject to Art. 9 of this License Agreement.
With regard to Software updates Licensee may only assert claims based on defects, if any, for the respective new features included in the update. Any claims based on defects that already existed in the previous Software version, but had not been discovered, remain unaffected.
Art. 8 Infringement on Proprietary Rights
yasoon warrants that the Software provided to Licensee is free from third-party proprietary rights and indemnifies and holds Licensee harmless from and against third-party claims based on the infringement on proprietary rights subject to the following provisions.
In the event that third parties assert claims against Licensee based on the infringement on their proprietary rights as a consequence of the use of the Software in compliance with this Agreement, Licensee shall notify yasoon promptly and comprehensively in writing. yasoon has the right, but is not obligated to handle the dispute with the third party in court and out of court in its sole responsibility. In the event that yasoon acts upon this authorization, Licensee shall reasonably assist yasoon free of charge. Licensee shall not recognize any third party claims at its own discretion.
In the event that it can be shown that defects as to title existed at the date of the passing of the risk, yasoon will procure the lawful right to use the Software and grant it to Licensee. Alternatively, yasoon has the right to replace the Software affected with another, equivalent software, provided, however, that Licensee can be reasonably expected to accept this. In the event that the infringement on third party proprietary rights and/or a legal dispute regarding the corresponding third party rights can be avoided or settled by Licensee using the current Software version that had been provided by yasoon, Licensee is obligated to install and use this Software version within the scope of its duty to minimize damage, unless Licensee proves that it cannot be reasonably expected to use the current Software version.
yasoon shall indemnify and hold Licensee harmless from and against any damage caused by infringements on proprietary rights within the liability limitations set forth in Art. 9, provided, however, that this damage was caused by a defect as to title for which yasoon is liable. In all other regards, the provisions regarding defects as to quality set forth in Art. 7 shall apply accordingly to any claims based on defects as to title.
Art. 9 Liability
yasoon shall only be liable for damage resulting from the use of the Software provided free of charge and/or during a test phase which is not subject to remuneration in the event of intentional wrongdoing or gross negligence.
Apart from that, yasoon shall only pay damages and reimburse wasted expenditures within the limits set forth below, irrespective of the legal cause (e.g., contractual liability, tort):
in case of intentional wrongdoing and gross negligence for the full amount;
in all other cases only for violation of a contractual duty that is of such material importance that the attainment of the purpose of the Agreement would be jeopardized so that Licensee may rely on compliance with the same (Kardinalpflicht). In these cases, yasoon shall only be liable for the foreseeable and typical damages.
If Licensee is a company or business person, the typical and foreseeable damage within the meaning of the foregoing sub-paragraph is limited to the contract volume, however, not less than EUR 10,000.00 per damage incident (as a maximum liability cap).
Except in case of intentional wrongdoing and gross negligence, liability for data loss is limited to the expenses typically incurred for data restoration, provided that Licensee has made backup copies on a regular basis and in a manner that is reasonable in view of the level of risk.
Liability for personal injury and under the Product Liability Act (ProdHaftG) remains unaffected by the above provisions.
Art. 10 Statute of Limitations
The limitations period for claims of Licensee resulting from defects and for damages and reimbursement of wasted expenditures is one (1) year. This shall not apply if the defect exists in the form of an id rem right of a third party and if the third party may claim the surrender of the Software based on this right.
The commencement of the statute of limitations period is subject to the applicable statutory provisions. If a maximum period is defined in the statutory provisions, the claim shall come under the statute of limitations no later than upon the expiration of five (5) years from the date on which the claim arose.
The statutory limitations period for claims against yasoon due to an intentional or grossly negligent violation of a duty, in particular, in the event of the malicious concealment of a defect, assumption of a guarantee and personal injury or under the Product Liability Act (ProdHaftG) remains unaffected.
Art. 11 Confidentiality and Data Protection
Licensee agrees to treat any business and trade secrets of yasoon and any other business information of an obviously confidential nature that are disclosed to Licensee or of which it may become aware in any other manner in strict confidence. It shall use such information only for the purpose specified in the Agreement and shall not disclose it to unauthorized third parties. In particular, confidential information shall include the Software provided to Licensee. Licensee shall ensure that unauthorized third parties are unable to gain access to confidential information.
Licensee will have to enter a valid email account prior to the initial download of the Software. In the event that Licensee acquires the license under a purchase agreement, additional data will have to be entered (e.g., name, address, user data). yasoon will store and process such personal data of Licensee only to the extent required for processing and performing the License Agreement or to the extent that Licensee has granted its consent to the processing of its data.
In addition, yasoon will also store Licensee’s computer name in order to monitor its compliance with the license terms and conditions, in particular, with the licensed scope of Software use. Licensee hereby grants its express consent to this form of data processing.
Art. 12 Final Provisions
Licensee is not allowed to assign or transfer any contractual rights or duties to third parties – including any affiliated companies of Licensee – unless it has obtained the prior written consent of yasoon.
In the event that Licensee materially violates any provision of this License Agreement or if it is in default with its payment of the license fee, yasoon has the right – in addition to other rights that remain unaffected – to revoke the right to use the Software granted to Licensee.
This License Agreement is governed by German law, and the UN Convention on the Sale of Goods is excluded. Mandatory national consumer protection law at Licensee’s place of residence remains unaffected. Mannheim, Germany, is the place of jurisdiction for all disputes arising out of or in connection with this License Agreement, if Licensee is a business person or treated as such, or if its place of business or residence is abroad. yasoon has the right to bring action against Licensee before any other national or international court having jurisdiction.
If any provision of this License Agreement is or should become invalid or unenforceable, or in the event of a gap in this License Agreement, the remaining terms and provisions governing the contractual relationship shall remain in full force and effect. The invalid, unenforceable or missing provision shall be replaced by such a valid provision that most closely reflects the economic and business intention of the parties at the time the License Agreement was concluded.
Exhibit
Consumers have a right to revocation as set forth below. A “consumer” is any individual that enters into a legal transaction for purposes that cannot be primarily attributed to their commercial nor self-employed activities:
Information on the Right to Revocation
Right to revocation:
You have the right to revoke this Agreement within fourteen (14) days without giving reasons. The period for the revocation of the License Agreement begins to run fourteen (14) days from the date on which the License Agreement is concluded. In order to exercise your right you need to notify us,
yasoon GmbH
Glücksteinallee 69
68163 Mannheim
Germany
contact@yasoon.de
of your decision to revoke this Agreement by a clear statement (e.g., a letter sent by mail, fax or email). You may use the attached specimen form for revoking the Agreement, however, its use is not mandatory.
The revocation period shall be deemed to have been complied with if you dispatch the notice on the exercise of the right to revocation prior to the end of the revocation period.
Consequences of a revocation
If you revoke this Agreement, we shall refund any payments that we have received from you, including shipping charges (with the exception of additional costs that were incurred because you selected another form of shipment than the standard delivery that was the cheapest option offered by us) promptly and not later than within fourteen (14) days from the date on which we received your notice regarding the revocation of this License Agreement. We shall use the same payment mode for this refund that you had used for the original transaction, unless we expressly agree otherwise with you. You will not be charged any fees for this refund in any event.
End of information on the right to revocation
Specimen Form for Revocation
(If you wish to revoke the Agreement, please fill in this form and return it to us.)
To:
Yasoon GmbH
Glücksteinallee 69
68163 Mannheim
Germany
or
I/we (*) hereby revoke the Agreement on the purchase of the following goods (*) / the provision of the following services (*) signed by me/ us (*) ordered on (*) / received on (*)
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only if in paper form)
Date
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being revised to match the Standard Agreement from the Atlassian Marketplace by Bonterms, streamlining the process for customers who buy various apps to need to go through only one standardized document. The existing EULA remains effective until August 31st, 2024, and can be accessed /wiki/spaces/Trust/pages/3623878675. Starting September 1st, 2024, the EULA provided below will become our official agreement. |
As of September 1st 2024, we’re using the Standard Agreement of the Atlassian Marketplace v1.0 from Bonterms that can be found here Marketplace Transactions - Bonterms and (unchanged) below.
All modifications and provider-specific terms are defined in §21.
Additionally §22 contains additions for our Atlassian Datacenter offerings and §23 the amendments for Microsoft AppSource.
Bonterms Standard Agreement for Marketplace Transactions
(Version 1.0)
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Role of Bonterms: Bonterms publishes this Standard Agreement but is not a party to the Agreement created between Provider and Customer and has no responsibility to either for its use.
Using this Standard Agreement.
1.1 Standard Agreement. This Bonterms Standard Agreement for Marketplace Transactions (Version 1.0) (“Standard Agreement”) sets forth the terms and conditions under which Provider makes available Subscriptions to its Cloud Service or Provider Software (each, a “Product”) offered through a Listing on the Marketplace. Provider may (i) make additions to or modifications of this Standard Agreement (“Additional Terms”) or (ii) add Attachments by stating as such in its Listing. Any Additional Terms and any Attachments are collectively referred to as “Provider-Specific Terms.” Capitalized terms are defined in context or in Section 20 (Definitions).1.2 Entering the Agreement. Customer and Provider agree to this Standard Agreement and any Provider-Specific Terms (collectively, the “Agreement”) upon Customer’s first entry into an Order (“Effective Date”).
1.3 Orders. As specified in the Marketplace, an Order may be between Customer and the Marketplace provider (or other reseller or agent of Provider) or directly with Provider. Each Order creates a separate Agreement between Provider and Customer but Orders do not become part of the Agreement.
1.4 Order of Precedence. In the event of a conflict between the elements of the terms and conditions making up the Agreement, the order of precedence is: (i) any Amendment, (ii) Provider-Specific Terms and (iii) this Standard Agreement.
Products.
2.1 Cloud Service. Subject to this Agreement, Customer may use the Cloud Service for its own business purposes in accordance with the Permitted Use.2.2 Provider Software. Subject to this Agreement, Customer may install, copy and use the Provider Software for its own business purposes in accordance with the Permitted Use.
2.3 Users. Customer may permit Users to use the Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Product and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Provider upon learning of any compromise of User accounts or credentials.
Customer Data.
3.1 Use of Customer Data. Subject to this Agreement, Provider will access and use Customer Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement (“Use of Customer Data”). Use of Customer Data includes sharing Customer Data as Customer directs through the Cloud Service, but Provider will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.3.2 Security. Provider will implement and maintain the Security Measures, if any, identified in the Provider-Specific Terms. If no Security Measures are identified, Provider will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.
3.3 DPA. The parties will adhere to the Data Protection Addendum (DPA), if any, identified in the Provider-Specific Terms.
3.4 Usage Data. Provider may collect Usage Data and use it to operate, improve and support the Product and for other lawful business purposes, including benchmarking and reports. However, Provider will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers.
Mutual Compliance with Laws. Each party will comply with all Laws that apply to its performance under this Agreement.
Support and SLA.
5.1 Support. Provider will provide Support for the Product as described in any Support Policy identified in the Provider-Specific Terms.5.2 SLA. Provider will adhere to any Service Level Agreement (SLA) identified in the Provider-Specific Terms.
Warranties.
6.1 Mutual Warranties. Each party represents and warrants that:
(a) it has the legal power and authority to enter into this Agreement, and
(b) it will use industry-standard measures to avoid introducing Viruses into the Cloud Service.6.2 Performance Warranty.
(a) Scope. Provider warrants that the Product will perform materially as described in the Documentation and that Provider will not materially decrease the overall functionality of the Cloud Service during the Subscription Term (the “Performance Warranty”).
(b) Claim Report. Customer must report a breach of warranty in reasonable detail (“Claim”) within 30 days after discovering the issue in the Product (“Claim Period”).
(c) Remedy. Within 30 days of receiving a verified Claim during the Claim Period (“Fix Period”), Provider will use reasonable efforts to correct or provide a reasonable workaround (“Fix”) for the Claim. If Provider fails to provide a Fix during the Fix Period, either party may on notice to the other terminate the Subscription as it relates to the nonconforming Product and Provider will refund to Customer any prepaid, unused fees for the terminated portion of the Subscription Term.
(d) Exclusive Remedy. The procedures set forth in this Section 6.2 are Customer’s exclusive remedies and Provider’s sole liability for breach of the Performance Warranty.6.3 Disclaimers. Except as expressly set out in this Agreement, each party disclaims all warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement. Provider’s warranties in this Section 6 do not apply to issues arising from Third-Party Platforms or misuse or unauthorized modifications of the Product. These disclaimers apply to the full extent permitted by Law.
Usage Rules.
7.1 Compliance. Customer (a) will comply with any Acceptable Use Policy (AUP) identified in the Provider-Specific Terms and (b) represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service and grant Provider the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy or other rights. Between the parties, Customer is responsible for the content and accuracy of Customer Data.7.2 High-Risk Activities and Sensitive Data. Customer:
(a) will not use the Product for High-Risk Activities;
(b) will not submit Sensitive Data to the Cloud Service, and
(c) acknowledges that the Product is not designed for (and Provider has no liability for) use prohibited in this Section 7.2.7.3 Restrictions. Customer will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Product (in whole or part), grant non-Users access to the Product or use the Product to provide a hosted or managed service to others, (b) reverse engineer, decompile or seek to access the source code of the Product, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Provider, (c) copy, modify, create derivative works of or remove proprietary notices from the Product, (d) conduct security or vulnerability tests of the Cloud Service or interfere with its operation, (e) circumvent access restrictions to any Product or (f) use the Product to develop a product or service that competes with the Product.
Third-Party Platforms. To the extent offered by Provider, Customer may choose to enable integrations or exchange Customer Data with Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement, and Provider is not responsible for Third-Party Platforms or how their providers use Customer Data.
Professional Services. Provider will perform Professional Services as described in a Statement of Work, which may identify additional terms or milestones for the Professional Services. Customer will give Provider timely access to Customer Materials reasonably needed for Professional Services, and Provider will use the Customer Materials only for purposes of providing Professional Services. Subject to any limits in a Statement of Work, Customer will reimburse Provider’s reasonable travel and lodging expenses incurred in providing Professional Services. Customer may use code or other deliverables that Provider furnishes as part of Professional Services only in connection with Customer’s authorized use of the Product under this Agreement.
Fees. Fees will be as stated in the Order and payment terms are as set forth in the Order or terms of the Marketplace.
Suspension. Provider may suspend Customer’s access to the Cloud Service and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Provider is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, Provider will promptly restore Customer’s access to the Cloud Service in accordance with this Agreement. “Suspension Event” means (a) Customer’s account is 30 days or more overdue, (b) Customer is in breach of Section 7 (Usage Rules) or (c) Customer’s use of the Cloud Service risks material harm to the Cloud Service or others.
Term and Termination.
12.1 Subscription Terms. Each Subscription Term will last for an initial 12-month period unless the Order states otherwise.12.2 Term of Agreement. This Agreement starts on the Effective Date and continues until the end of all Subscription Terms, unless sooner terminated in accordance with its terms. If no Subscription is in effect, either party may terminate this Agreement for any or no reason with notice to the other party.
12.3 Termination. Either party may terminate this Agreement (including all Subscriptions) if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
12.4 Data Export and Deletion.
(a) During a Subscription Term, Customer may export Customer Data from the Cloud Service (or Provider will otherwise make the Customer Data available to Customer) as described in the Documentation.
(b) After termination or expiration of this Agreement, within 60 days of request, Provider will delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.
(c) Nonetheless, the recipient may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 3.2 (Security), Section 16 (Confidentiality) and any DPA.12.5 Effect of Termination.
(a) Customer’s right to use the Product, Support and Professional Services will cease upon any termination or expiration of this Agreement, subject to this Section 12.
(b) The following Sections will survive termination or expiration of this Agreement: 3.4 (Usage Data), 6.3 (Disclaimers), 7 (Usage Rules), 12.4 (Data Export and Deletion), 12.5 (Effect of Termination), 13 (Intellectual Property), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 19 (General Terms) and 20 (Definitions).(c) Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Intellectual Property.
13.1 Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Provider’s express rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to Provider. Except for Customer’s express rights in this Agreement, as between the parties, Provider and its licensors retain all intellectual property and other rights in the Product, Professional Services deliverables and related Provider technology.13.2 Feedback. If Customer gives Provider feedback regarding improvement or operation of the Product, Support or Professional Services, Provider may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Provider will not publicly identify Customer as the source of feedback without Customer’s permission.
Limitations of Liability.
14.1 General Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed the General Cap.14.2 Consequential Damages Waiver. Neither party will have any liability arising out of or related to this Agreement for indirect, special, incidental, reliance or consequential damages or damages for loss of use, lost profits or interruption of business, even if informed of their possibility in advance.
14.3 Exceptions and Enhanced Cap. Sections 14.1 (General Cap) and 14.2 (Consequential Damages Waiver) will not apply to Enhanced Claims or Uncapped Claims. For all Enhanced Claims, each party’s entire liability will not exceed the Enhanced Cap.
14.4 Nature of Claims. The waivers and limitations in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
14.5 Liability Definitions.
“Enhanced Cap” means three times (3x) the General Cap.
“Enhanced Claims” means Provider’s breach of Section 3.2 (Security) or either party’s breach of Section 3.3 (DPA).
“General Cap” means amounts paid or payable by Customer to Provider under this Agreement in the 12 months immediately preceding the first incident giving rise to liability.
“Uncapped Claims” means (a) the indemnifying party’s obligations under Section 15 (Indemnification), (b) either party’s infringement or misappropriation of the other party’s intellectual property rights, (c) any breach of Section 16 (Confidentiality), excluding breaches related to Customer Data and (d) liabilities that cannot be limited by Law.
Indemnification.
15.1 Indemnification by Provider. Provider, at its own cost, will defend Customer from and against any Provider-Covered Claims and will indemnify and hold harmless Customer from and against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Provider resulting from the Provider-Covered Claims.15.2 Indemnification by Customer. Customer, at its own cost, will defend Provider from and against any Customer-Covered Claims and will indemnify and hold harmless Provider from and against any damages or costs awarded against Provider (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the Customer-Covered Claims.
15.3 Indemnification Definitions.
“Customer-Covered Claim” means a third-party claim arising from Customer’s breach or alleged breach of Section 7.1 (Compliance) or 7.2 (High-Risk Activities and Sensitive Data).“Provider-Covered Claim” means a third-party claim that the Product, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party’s intellectual property rights.
15.4 Procedures. The indemnifying party’s obligations in this Section 15 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use or nonuse of the Product when Provider is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
15.5 Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as Provider determines necessary to avoid material liability, Provider may: (a) procure rights for Customer’s continued use of the Product, (b) replace or modify the allegedly infringing portion of the Product to avoid infringement, without reducing the Product’s overall functionality or (c) terminate the affected Subscription and refund to Customer any prepaid, unused fees for the terminated portion of the Subscription Term.
15.6 Exceptions. Provider’s obligations in this Section 15 do not apply to claims resulting from (a) modification or unauthorized use of the Product, (b) use of the Product in combination with items not provided by Provider, including Third-Party Platforms or (c) Provider Software other than the most recent release, if Provider made available (at no additional charge) a newer release that would avoid infringement.
15.7 Exclusive Remedy. This Section 15 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation covered by this Section 15.
Confidentiality.
16.1 Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.16.2 Permitted Disclosures.
(a) Personnel. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Provider, the subcontractors referenced in Section 19.9), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.
(b) Required by Law. The recipient may disclose Confidential Information (including Customer Data) to the extent required by Law. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.16.3 Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
16.4 Remedies. Breach of this Section 16 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section 16, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.
Publicity. Neither party may publicly announce this Agreement without the other party’s prior approval or except as required by Laws.
Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated in the Order (or if not designated, 30 days). Either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, Provider offers no warranty, indemnity, SLA or Support for Trials and Betas and its liability for Trials and Betas will not exceed US$1,000.
General Terms.
19.1 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.19.2. Governing Law and Courts.
(a) The Governing Law governs this Agreement and any action arising out of or relating to this Agreement, without reference to conflict of law rules. The parties will adjudicate any such action in the Courts and each party consents to the exclusive jurisdiction and venue of the Courts for these purposes.
(b) Unless otherwise specified in the Provider-Specific Terms, the “Governing Law” is the laws of the State of California and the “Courts” are the federal and state courts located in San Francisco, California.19.3 Notices.
(a) Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to the addresses specified by Provider and Customer and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered U.S. mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery service or (4) upon delivery if by email.
(b) Provider will specify its notice address through the Listing or Product and Customer will specify its notice address through the Order or other method designated by Provider. Either party may update its notice address with notice to the other. Provider may also send operational notices through the Product.19.4 Entire Agreement.
(a) This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Terms in purchase orders used by Customer will not amend or modify this Agreement; any such documents are for administrative purposes only. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
(b) Neither the provider of the Marketplace (except if operating as the Provider) nor Bonterms, the publisher of this Standard Agreement, is a party to this Agreement and neither will have any liability or responsibility to either Provider or Customer in connection with use of this Standard Agreement.19.5 Amendments.
(a) Any amendments to this Agreement must be in writing and signed by each party’s authorized representatives (an “Amendment”). Amendments become part of this Agreement.
(b) Orders may contain Use Restrictions but do not amend or modify any part of this Agreement.19.6 Operational Changes. With notice to Customer, Provider may modify the AUP, Security Measures, SLA or Support Policy to reflect new features or changing practices, but the modifications may not be retroactive or materially decrease Provider’s overall obligations during a Subscription Term.
19.7 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
19.8 Force Majeure. Neither party is liable for a delay or failure to perform this Agreement due to a Force Majeure. If a Force Majeure materially adversely affects the Product for 15 or more consecutive days, either party may terminate the affected Subscription upon notice to the other and Provider will refund to Customer any prepaid, unused fees for the terminated portion of the Subscription Term. However, this Section 19.8 does not limit Customer’s obligations to pay fees owed.
19.9 Subcontractors. Provider may use subcontractors and permit them to exercise Provider’s rights and fulfill Provider’s obligations, but Provider remains responsible for each subcontractor’s compliance with this Agreement and for Provider’s overall performance under this Agreement. This does not limit any additional terms for subprocessors under a DPA.
19.10 Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.
19.11 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.12 Open Source. Provider Software may include third-party open source software (“Open Source”) as listed in the Documentation or by Provider upon request. Customer acknowledges that its license to use any Open Source will be the Open Source license applicable to such code and not the license to Provider Software in Section 2.2 (Provider Software) above to the extent required by such Open Source license.
19.13 Export. Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist-supporting” country. Customer will not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.
19.14 Government Rights. To the extent applicable, the Product is “commercial computer software” or a “commercial item” for purposes of FAR 12.212 and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Product is governed solely by the terms of this Agreement, and all other use is prohibited.
Definitions.
“Acceptable Use Policy” or “AUP” is defined in Section 7.1 (Compliance).
“Additional Terms” is defined in Section 1.1 (Standard Agreement).
“Agreement” is defined in Section 1.2 (Entering the Agreement).
“Amendment” is defined in Section 19.5 (Amendments).
“Attachments” means any AUP, Security Measures, SLA, Support Policy or other policies specified in the Provider-Specific Terms.
“Cloud Service” means Provider’s proprietary software as a service (SaaS) or cloud service as identified in the applicable Listing.
“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Provider’s Confidential Information includes technical or performance information about the Product, and Customer’s Confidential Information includes Customer Data.
“Courts” is defined in Section 19.2 (Governing Law and Courts).
“Customer” means the party placing the Order.
“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Cloud Service accounts, including from Provider Software or Third-Party Platforms.
“Customer Materials” means materials and resources that Customer makes available to Provider in connection with Professional Services.
“Data Protection Addendum” or “DPA” is defined in Section 3.3 (DPA).
“Documentation” means Provider’s standard usage documentation for the Product. Documentation is included in the definition of “Product” unless otherwise specified.
“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.
“Governing Law” is defined in Section 19.2 (Governing Law and Courts).
“High-Risk Activities” means activities where use or failure of the Product could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
“Laws” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.
“Listing” means Provider’s description of its Product (and any related Support) and Subscriptions in a listing on the Marketplace that designates use of this Standard Agreement.
“Marketplace” means the application marketplace or app store on which Provider has published a Listing and made available Subscriptions to their Product.
“Open Source” is defined in Section 19.12.
“Order” means an order by Customer for a Subscription that is entered into through the Marketplace.
“Permitted Use” means use of a Product in accordance with the applicable Subscription, any Use Restrictions and the Documentation.
“Product” is defined in Section 1.1 (Standard Agreement).
“Professional Services” means training, migration or other professional services that Provider furnishes to Customer related to the Product.
“Provider” means the party providing the Product.
“Provider Software” means Provider’s proprietary installed software or apps identified in the applicable Listing.
“Provider-Specific Terms” is defined in Section 1.1 (Standard Agreement).
“Security Measures” is defined in Section 3.2 (Security).
“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (b) credit, debit, bank account or other financial account numbers, (c) social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation.
“Service Level Agreement” or “SLA” is defined in Section 5.2 (SLA).
“Standard Agreement” is defined in Section 1.1 (Standard Agreement).
“Statement of Work” means a statement of work for Professional Services that is signed by the parties and references this Agreement.
“Subscription” means the right for Customer to access the Product and any related Support as described in a Listing and the applicable Order.
“Subscription Term” means the term for a Subscription as identified in the Order.
“Support” means support for the Product as described in Section 5.1 (Support).
“Support Policy” is defined in Section 5.1 (Support).
“Suspension Event” is defined in Section 11 (Suspension).
“Third-Party Platform” means any product, add-on or platform not provided by Provider that Customer uses with the Cloud Service.
“Trials and Betas” mean access to the Product on a free or trial basis or to particular features designated by Provider as “beta” or “early access.”
“Usage Data” means Provider’s technical logs, data and learnings about Customer’s use of the Product, but excluding Customer Data.
“Use Restrictions” means user, seat, copy, installation, license or other scope of use restrictions for the Product as specified in a Listing or Order.
“User” means anyone that Customer allows to use its accounts for the Product, who may include (a) employees, advisors and contractors of Customer and (b) others if permitted in this Agreement, the Documentation or a Listing.
“Virus” means viruses, malicious code or similar harmful materials.
Provider-Specific Terms.
21.1 Replacement of section 19.2 (b): the “Governing Law” is the laws of Germany and the “Courts” are the federal and state courts located in Mannheim, Germany.
21.2 The Data Protection Appendum (DPA) mentioned in section 3.3 can be found at the following page: DPA - Data Processing Addendum
21.3 The Service Level Agreements (SLA) and the Support Policy mentioned in section 5.1 can be found at the following page: SLA - Service Level Agreements
21.4 The Acceptable Use Policy of yasoons' cloud services mentioned in section 7 can be found at the following page: Acceptable Use Policy (AUP)
Amendments for Atlassian Data Center.
22.1 Subject matter of the Data Center offering
(a) Our Atlassian Data Center solution matches the Cloud services outlined in section 2.1, plus it comes with extra downloadable Software from the Atlassian Marketplace for installation on the Customer's Atlassian Data Center instance.
(b) The Customer is entitled to download a previous version from the Atlassian Marketplace instead of the most current version. However, we do not guarantee compatibility with other software and the security of such older versions.
22.2 Customer obligations to cooperate
(a) The Customer shall be obliged to keep the Software up to date at all times during the term of the agreement, in particular to install upgrades and new versions of the Software immediately after we have notified the Customer accordingly. To be informed by us about the latest upgrades and versions of the Software, the Customer undertakes to log in to the "Watch" function. Without a corresponding registration, a Customer can always view the latest version of a Software under the history version, which can be found for the relevant product on the Atlassian Marketplace under "Versions > See all versions". We inform the Customer about critical security updates in any case without the latter having to take any action; the information is sent to the contact data entered by the Customer on https://my.atlassian.com. We shall only provide our support services if the Software is up to date with the latest version delivered by us.
(b) The Customer shall be solely responsible for setting up a functional hardware and Software environment for the Software of a size that is sufficient to take into account the additional load caused by the subject matters covered by the agreement. Same is true for the network environment that allows access to the Cloud services required for the Data Center offering.
(c) The Customer shall thoroughly test the Software before use to verify any defects and usability in the existing hardware and Software configuration. This also applies to Software which the Customer receives within the scope of warranty and, where applicable, maintenance.
(d) The Customer shall comply with our Company's instructions for the installation and operation of the Software; it shall regularly keep up to date with our company's current instructions on the website accessible via the Internet at http://support.yasoon.com and take them into account during operation. We expressly refer to our free Security Advisory Notifications, for which a Customer can register at http://trust.yasoon.com , and to the Customer's obligation to mitigate damage.
(e) The Customer shall bear any disadvantages and additional costs resulting from a breach of these obligations.
22.3 Data backup by the Customer; Liability for loss of data
(a) The Customer shall take appropriate measures for the event that the Software does not work properly in whole or in part (e.g. daily data backup, fault diagnosis, regular checking of data processing results). In particular, the Customer shall carry out a complete backup of all system and application data immediately before each update or installation of a newer version of the Software. The data backups shall be stored in such a way that the backed-up data may be restored at any time.
(b) Our company shall not be liable for the loss of Customer data insofar as the damage is due to the Customer failing to carry out data backups and thereby ensuring that lost data can be restored with reasonable effort, contrary to its obligation under section 22.3 (a). In all other respects, section 14 shall apply.
22.4 End of Life compatibility
For a period of two years, we support versions of our Software older than the most current version only by providing security patches for critical security vulnerabilities ("End of Life"). We expressly point out that beyond this period of time, neither compatibility with the current basic Software of Atlassian (e.g. Confluence, Jira) nor sufficient security of such previous versions is guaranteed. If we provide updates, they will be compatible with versions of Atlassian's Software (e.g. Confluence; Jira) released within the last two years.
Amendments for Microsoft apps on AppSource.
Complementary apps on the Microsoft marketplace AppSource, as “Smart Connect for Jira” and “Jira for Outlook”, are licensed without any additional fees.
Therefore the paragraph 10 doesn’t apply for those offerings.