End User License Agreement (EULA)

Document effective date: 27th April 2020
Version updates: New EULA covering both On-prem and Cloud Apps

Previous version:
18th December 2018

Important
The purchasing of Apwide licenses is done through the Atlassian Marketplace. Therefore, you have to agree with the Atlassian Marketplace Terms of Use, which contains a Standard EULA, as well as with our EULA below (the Publisher EULA) that applies for licenses purchased or renewed after 27/04/2020.

1. Applicability

This End-User License Agreement ("EULA") is a legal agreement between you and Apwide SA, reg. no. CHE-473.889.808, a public limited company incorporated under the laws of Switzerland (the “Vendor”).

By placing an Order for an App (also called software application, extension or plugin) provided by the Vendor on the Atlassian Marketplace (https://marketplace.atlassian.com), you agree to be bound to both the Atlassian Marketplace Terms of Use (https://atlassian.com/licensing/marketplace/termsofuse) and these Vendor Terms, which form a legally binding agreement between you (defined in Section 1.1 of the Atlassian Marketplace Terms of Use) and the Vendor.

When the Order is placed on your behalf by an Atlassian Reseller or an Atlassian Solution Partner, you are deemed to have authorised the Atlassian Reseller or the Atlassian Solution Partner to place the Order. If you do not agree to all the terms of these Vendor Terms, you may not install or use the Apps.

Terms that are defined in the Atlassian Marketplace Terms but not in these Vendor Terms shall have the same meaning as defined in the Atlassian Marketplace Terms at the time of the last revision date, including terms “Vendor Terms”, “you”, “App”, “Order”.

2. Apwide and Atlassian

The Apps interoperate with Jira™ and/or Jira Service Desk™ that are products provided by Atlassian Pty Ltd.

Atlassian is not a part of these Vendor Terms. Atlassian is the Vendor’s commercial agent for the Apps and is authorised to collect payments on the Vendor’s behalf.

If you authorized an Atlassian Reseller or an Atlassian Solution Partner to place the Order on your behalf, the Atlassian Reseller or Atlassian Solution Partner is normally charging you for the Apps and settles the relevant fee through Atlassian on your behalf.

The Apps are available as downloadable software Apps (“On-prem Server Apps” working with Atlassian Server products or “On-prem DC Apps” working with Atlassian Data Center products) and as cloud software Apps (“Cloud Apps” working with Atlassian Cloud products).

When Ordering a Cloud App, you agree that the Cloud App will be operated on the Vendor’s cloud environment, currently hosted at OVHcloud within European Union (EU), with an integration to the Atlassian Cloud Products. More information can be found in our Cloud Security Statement.

3. Licenses

3.1. On-prem Sever Apps

When you purchase an On-prem Server App, the Vendor grants you a limited, non-transferable, non-exclusive, non-sublicensable and worldwide license to use the Ordered On-prem Server App on hardware systems owned, leased or controlled by you.

Licenses for On-prem Server Apps are perpetual licenses.

3.2. On-prem DC Apps

When you purchase an On-prem DC App, the Vendor grants you a limited, non-transferable, non-exclusive, non-sublicensable and worldwide license to use the Ordered On-prem DC App on hardware systems owned, leased or controlled by you.

Licenses for On-prem DC Apps are subscription-based licenses available for various terms (e.g. on a running monthly or annual basis).

3.3. Cloud Apps

When you purchase a Cloud App, the Vendor grants you a limited, non-transferable, non-exclusive, non-sublicensable and worldwide licence to use the Ordered Cloud App.

Licenses for Cloud Apps are subscription-based licenses available for various terms (e.g. on a running monthly or annual basis).

3.4. User Licenses and Fees

On-prem Server Apps, On-prem DC Apps and Cloud Apps Licenses are for a defined number of users who can access and use the App concurrently. You must ensure the maximum number of users who access and use the App concurrently is not in excess of the number of licenses Ordered and granted under these Vendor Terms. At any time, you can Order additional User Licenses and pay the appropriate fees.

Vendor can change the amount of fees for an App at any time and the new fees will apply from the next billing cycle. Licensees will be provided with a notice.

Vendor can decide not to charge a fee for any App for some time, and later charge a price for that App. Licensees will be provided with a notice.

3.5. Modification and Reproduction

You are not permitted to:

Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the App nor permit the whole or any part of the App to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things
Reproduce, copy, distribute, resell, lease, lend or otherwise use the App for any commercial purpose
Allow any third party to use or control the App on behalf of or for the benefit of any third party
Use the App in any way which breaches any applicable local, national or international law

4. Support, Maintenance and Updates

Vendor offers support in respect of the Service Level Agreement (“SLA”). The current SLA can be found here.

For Cloud Apps and for On-prem DC Apps, the subscription fees includes access to support and maintenance pursuant to the SLA.

For On-prem Server Apps, you must purchase support and maintenance pursuant to the SLA from the Vendor through the Atlassian Marketplace. The fee for Ordering an On-prem Server App may include support and maintenance for an initial term. After this initial term, you must continue to purchase support and maintenance for additional terms.

Without any valid SLA, the Vendor will have no obligation or liability to support, maintain or update the Ordered App.

Vendor has no obligation to update any App, and an App may be changed without notice to you. If Vendor provides updates to an Ordered App, these Vendor Terms also apply to the updated version of the App.

5. Intellectual Property and Ownership

Vendor shall at all times retain ownership rights, intellectual property rights and copyrights in the Apps. Under these Vendor Terms no rights (other than the non-exclusive limited license) is transferred or granted to you.

6. Confidentiality

During the life of these Vendor Terms and for a period of three (3) years after its termination, the receiving party undertakes not to disclose to third parties confidential information received from the disclosing party.

Under these Vendor Terms, confidential information shall mean any information that is expressly stated to be confidential by the party providing it, with exception of the below:

Information which the receiving party can show was in its possession before receiving it from the disclosing party.
Information known or which will become known in full detail to the public other than by breach of the obligations herein contained.
Information which a party has received or will receive from a third party without restraints as to the disclosure thereof. In such case, the receiving party is not entitled to reveal to third parties that the same information has been received from the disclosing party under these Vendor Terms.
Information which a party is obligated to provide by law. In such case, the disclosing party shall immediately inform the other party of such obligation and disclosure.

7. Data Privacy and GDPR

Vendor has the right to access your data as exposed in the Atlassian Marketplace Terms of Use, including for analytical purposes.

For Cloud Apps, you must also grant the Vendor the right and permission to access, store, process, distribute, export and adapt your data, as required for the proper functionality and performance of the Cloud Apps in the cloud environment. You must also grant the Vendor the right to permit Vendor’s hosting, connectivity and telecommunications service providers to do the same.

If Vendor will process personal data on your behalf, and if you are subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you must request and complete Vendor’s Data Processing Addendum.

You guarantee that your data used in or by a Cloud App and relevant cloud environments will not infringe the intellectual property rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

You agree to indemnify, defend and hold Vendor harmless from any third party claims directed against Vendor or any of its affiliates, for any such infringement, breach or violation, including any alleged infringement, breach or violation.

Vendor’s applicable Privacy Policy applies for personal data relating to your company representatives or agents. Our current Privacy Policy can be found here.

8. Publicity Rights

During this EULA validity, you grant Vendor the right to include your organisation as a customer in promotional material, including your logo. As set out in the Atlassian Marketplace Terms of Use, Vendor shall also have the right to use reviews made by your organisation at the Atlassian Marketplace.

You can deny Apwide SA any of these rights at any time by submitting a written request via our Customer Portal, requesting to be excluded from any further promotional material. Requests may take thirty (30) calendar days to process when made after Ordering.

9. No warranty and exclusion of liability

You acknowledge and agree that the Apps and any related documentation are offered “as is” and “as available”. The Vendor hereby disclaims all warranties, whether express or implied, including any implied warranties of fitness for a particular purpose, non-infringement or that the use of the Apps will be error-free, uninterrupted or completely secure.

You are solely responsible for any damage to your devices or loss of data which may result by the use of the Apps.

Vendor does not have any liability in relation to the Apps, including for any indirect, punitive, consequential, special or other liability. In case the foregoing disclaimer is not enforceable at law for any reason, Vendor’s aggregate liability to you under these Vendor Terms will in no event exceed the greater of (i) the fee you paid for the App related to your claim and (ii) CHF 100.

10. Force Majeure

Neither you or the Vendor shall be responsible or liable for failure or delay carrying out these Vendor Terms in case of circumstances beyond its reasonable control, including (but not limited to) flood, fire, other natural disasters, labor strike, terrorist acts, accident, war, general interruptions of communication facilities, computer virus attacks and acts of any governmental authority, provided that the affected party shall give prompt notice thereof to the other party.

Such failure or delay shall not terminate these Vendor Terms and each party shall complete its obligations as promptly as reasonably practicable from the cessation of the conditions responsible of the failure or delay. However, if the above conditions continue to exist for more than three (3) months after the notice was given, either party may terminate these Vendor Terms upon written notice to the other party. In such situation, no party shall have any liability to the other party.

11. Exclusion and Termination

At its sole discretion, Vendor has the right to exclude or limit the provision of any product or service, including the access to or use of any of the Apps, to any person or entity, for any reason.

Vendor may terminate these Vendor Terms with immediate effect if you fail to comply with these Vendor Terms, including the default in payment of relevant fees, the violation of the Atlassian Marketplace Terms of Use or the violation of Swiss or any other applicable jurisdiction’s Copyright Act regarding the Apps. Such termination by Vendor shall be without prejudice to any other rights and remedies as may be available to Vendor, including injunctive and other equitable remedies.

Upon termination or expiry of these Vendor Terms, all rights granted to you, including but not limited to the right to use the Apps, will immediately cease. For On-prem Server Apps and On-prem DC Apps, you shall promptly (and no later than 30 days after termination) delete the Apps from the servers on which they are operated and all other systems. For Cloud Apps, Vendor reserves the right to remove or delete the Apps.

Sections 3.5, 5, 6, 9, 11 and 13 shall survive the termination of these Vendor Terms.

12. Changes to these Terms

The Vendor may update these Vendor Terms at its sole discretion by posting the revised terms on its website and on the Atlassian Marketplace. You, or your Atlassian Reseller or Atlassian Solution Partner on your behalf, may be required to click to agree to the modified Vendor Terms in order to continue using an App. Your use of an App after the effective date of the modifications constitutes your acceptance of the new terms.

For clarity, the version of these Vendor Terms in place at the time of your Order will apply for that Order. Except as provided in this Section 13, all amendments or changes to these Vendor Terms require a written agreement of you and the Vendor.

13. Governing law and dispute resolution

These Vendor Terms are governed by the laws of Switzerland without regard to its principles on conflicts of laws. The standard UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Any dispute, controversy, or claim arising out of, or in relation to, this Vendor Terms, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules.

The number of arbitrators shall be one or three.
The seat of the arbitration shall be Lausanne, Switzerland.
The arbitral proceedings shall be conducted in English.

The arbitration, the award and any documents or information submitted to the arbitration tribunal shall be final and binding, and shall be considered as confidential information pursuant to these Vendor Terms.

Notwithstanding the above, the Vendor reserves the right to collect any outstanding debt or payment in your jurisdiction with the use of debt collection authorities, including local courts to which jurisdiction you submit.