This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single legal entity) whose details are provided to Licensor upon Purchase (defined below) (“Licensee”) and Licensor to use the Software. This EULA applies from the date when the Licensee receives the Software from a Reseller or Licensor (“Purchase”). An amendment or addendum to this EULA may accompany the Software. The Licensee agrees to be bound by the terms of this EULA by installing, copying, downloading or otherwise using the Software. If the Licensee does not agree to the terms of this EULA, the Licensee may not install, copy, download or otherwise use the Software.
“Accessible Code” means source code that is unprotected and accessible.
“Licensor” means STAGIL, Walramstr. 12, 65183 Wiesbaden, Germany.
“Application” means the Atlassian JIRA Software, Atlassian JIRA Service Desk, Atlassian JIRA Core application within which the Software runs.
“Authorised User” means a person who accesses and uses the Software under a User Licence.
“Embedded Software” means any third party software which may contain Accessible Code, Protected Code or Media licensed by Licensor from a third party and embedded in the Software.
“Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Software and as applicable any Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by Licensor.
“Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
“Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.
“OEM Distribution” means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.
“OnDemand” means STAGIL software hosted in the cloud by Atlassian.
“Paid License” means a license for which Fees have not been waived by Licensor.
“Parties” means either Licensor or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this EULA.
“Reseller” means a third party selling and distributing Licensor services and/or products which it is authorised by Licensor to do so.
“Software” means the Licensor software entitled „STAGIL“ that accompanies this EULA, which may include computer software, Accessible Code and Protected Code and may include associated media, Media, printed materials, “online” or electronic documentation, Internet-based services and Embedded Software.
“User License” means a license granted under this EULA to the Licensee to permit an Authorised User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.
Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the non-exclusive right to use the Software subject to the following:
Full (Commercial) License
2.1 Authorised Users
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licences for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.
2.3 Installation and Use
Licensor may in its sole discretion provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality. If the Software is only provided for evaluation purposes the rights of the Licensee are limited to this evaluation license which permits the Licensee to download, install, use and operate the Software for a limited period (“Evaluation Period”) and be accessed by a limited number of temporary users only, as determined by Licensor (“Evaluation Licence”). On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
General License Terms
Each license granted by Licensor under this EULA is unless otherwise specified in this EULA or agreed by Licensor in writing; worldwide, non-exclusive and non-transferable.
Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be: perpetual for a Paid License; one calendar year (365 days) from the date of Purchase for a Free License or an annual OnDemand subscription, except that an Evaluation License will operate for the Evaluation Period only. Monthly OnDemand subscriptions will automatically renew for successive terms of the same period (but not longer than 1 year each) unless either the Licensee or Licensor notifies the other of non-renewal at least 5 business days prior to the upcoming expiration date or Licensor ceases to make a particular OnDemand hosted service available.
2.6 Permitted Computers
Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.7 Responsibility for Non-controlled systems
If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Uncontrolled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Uncontrolled Systems and the Licensee indemnifies Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Uncontrolled Systems.
The Licensee must pay all Fees by their due date notified to Licensee and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. EMBEDDED SOFTWARE
The Licensee acknowledges the Software contains Embedded Software and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of Embedded Software by the Licensee which is not in accordance with the use of the Software as permitted under the terms of this EULA. In such circumstances the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software.
While the Licensee is permitted to conduct performance and comparison “benchmarking” in relation to the Software as a whole against other software, the Licensee must not conduct any “benchmarking” in relation to the Software or any part thereof.
5. RESERVATION OF RIGHTS AND OWNERSHIP
Licensor reserves all rights not expressly granted to the Licensee in this EULA. The Software 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 Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software hereunder.
6. SUPPORT AND MAINTENANCE
6.1 Additional Software / Services
This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless Licensor provides other terms along with any Supplementary Software. Licensor reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
6.2 Support and Upgrades
Should any support services be provided by Licensor to the Licensee, then Licensee may request information about such services and such services may be subject to the payment of additional Fees.
7. LICENSEE OBLIGATIONS
7.1 Positive Obligations
Licensee must at all times: (a) ensure that only an Authorised User uses the Software and only in accordance with the terms and conditions of this EULA, (b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.
7.2 Negative Obligations
Licensee must not, whether through negligent act or omission, or without the prior written consent of Licensor, which may be withheld at Licensor’s discretion and include certain conditions: (a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software; (b) directly or indirectly access or use any Embedded Software independently of the rest of the Software; (c) sell; sublicense; redistribute; reproduce; transmit; circulate; disseminate; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (d) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code); (e) except as otherwise permitted in this EULA, publish; promote; broadcast; circulate or refer publicly to the Licensor name; trade name; trademark; service mark or logo; (f) commit any act or omission the likely result of which is that Licensor’s or any of its third party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Licensor’s interests; (g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Licensor; or (h) copy or embed elements of the Accessible Code contained in the Software into other software.
7.3 Protection Mechanisms
The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third party suppliers. Licensee must not modify or alter those features to try to defeat the Software or use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EULA.
If the Licensee discovers it has breached any of its obligations under this EULA and in particular but not limited to the obligations in clause 7, the Licensee must immediately report such breach to Licensor, in writing.
8.2 Breach of Additional Licences
Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
9. INVESTIGATION OF UNAUTHORISED USE AND DISTRIBUTION
If Licensor reasonably suspects the Software has been distributed to or obtained by any person or party without Licensor’s prior written consent, that Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EULA and in particular, but without limitation, its obligations under clause 7, Licensor reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EULA. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by Licensor within ninety (90) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing Licensor to terminate the licenses granted under this EULA.
10. PERMITTED FIXES
Notwithstanding anything else in this EULA but subject to any amendment or addendum to this EULA supplied with the Software.
11.1 Without prejudice to any other rights and in addition to any other termination rights in this EULA, Licensor may terminate with immediate effect, this EULA if
(a) the Licensee fails to comply with the terms and conditions of this EULA; or
(b) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
(c) Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee; or
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over Licensee (being a company); or
(f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee; or
(h) a creditor or encumbrancer of Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2 Immediately upon termination of a license granted under this EULA, the Licensee must at its own cost:
(a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; and (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; (c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
12. INFRINGEMENT INDEMNIFICATION
12.1 Infringement of Software
If the Software becomes, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party’s intellectual property rights, Licensor may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of Licensor and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Licensor under this EULA. Licensor will indemnify and hold harmless Licensee against all costs, expenses, losses and claims made against Licensee as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised Users use of the Software.
12.2 Licensee’s Use
Licensee will indemnify and hold harmless Licensor against all costs, expenses, losses and claims made against Licensor as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised User’s unauthorised use of the Software under this EULA.
12.3 Third Party Products
Licensee acknowledges and agrees that if Licensee breaches this EULA and Licensor or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, Licensor or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.
13. EXCLUSION OF WARRANTIES
To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, Licensor and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA, hereby disclaim all other warranties and conditions, whether express, implied or statutory.
14. LIMITATION OF LIABILITY
14.1 Non-excludable Warranties
The Licensee may have remedies against Licensor imposed by law or statute which can not be excluded by Licensor and its third party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability is limited (a) at Licensor’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance services; 1) re supply of the Maintenance services; or 2) the cost of having the Maintenance services supplied again; or (b) if the limitation set out in 14.1(a) is not applicable then to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.2 Limitation of Liability for other Losses
Subject to section 14.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of Licensor and any of its third party suppliers under any provision of this EULA and Licensee’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software. The entire liability of Licensee under any provision of this EULA and Licensor’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.
14.3 Consequential Loss
Notwithstanding anything else in this section 14, to the maximum extent permitted by applicable law, in no event shall Licensor or its third party suppliers be liable for any 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; special; incidental; punitive; indirect; or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software; the provision of or failure to provide Maintenance or other services; information; software; and related content through the Software or otherwise arising out of the use of the Software; or otherwise under or in connection with any provision of this EULA, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of Licensor or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if Licensor or any third party supplier has been advised of the possibility of such damages.
14.4 Licensor shall have no liability to the Licensee where faults arise from:
(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this licence, if the infringement would have been otherwise avoided; or
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by; or
(f) any breach of the Licensee’s obligations under this licence; or
(g) any modification not authorised by Licensor resulting in a departure from the licence; or
(h) any operator error on the part of the Licensee.
15. PUBLICITY RIGHTS
Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email to email@example.com, requesting to be excluded from Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process.
16. IMPROVING LICENSOR’S PRODUCTS
This EULA may not be amended except with the written agreement of Licensor whose consent may be withheld in its complete discretion without any requirement to provide reasons.
Licensee may assign this EULA to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) if Licensee is a supplier to a government agency; 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 Software 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 Agreement.
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
20. GOVERNING LAW AND EXCLUSIONS
20.1 Applicable Law
This EULA and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of Iceland and the Icelandic Courts shall be the competent court of jurisdiction.
20.2 Exception from Jurisdiction.
Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee place of residence) prior to, during, or after commencement or prosecution of arbitration proceedings or the final decision and award of the arbitrators.
20.3 Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
21. ENTIRE AGREEMENT
This EULA (and any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA.
Each party acknowledges that, in entering into this EULA (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA or those documents.
Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this EULA.
Nothing in this clause shall limit or exclude any liability for fraud.
All notices given to Licensor must be given to STAGIL, Walramstr. 12, 65183 Wiesbaden, Germany and to the Licensee at the address provided by it upon Purchase of the Software. Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an electronic communication, that such e-mail was sent to the specified e-mail address of the addressee.
If Licensor fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if Licensor fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
A waiver by Licensor of any default shall not constitute a waiver of any subsequent default.
No waiver by Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.
If any provision of the EULA (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.
25. NO PARTNERSHIP
Nothing in the EULA is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
In this EULA, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
A reference to a party includes its personal representatives, successors or permitted assigns;
The headings in this EULA are inserted for convenience only and shall not affect its construction.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to one gender includes a reference to the other gender.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
A reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
Clauses 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25 and 26 shall survive any termination of this EULA.