End User License Agreement Atlassian Apps
January 28, 2023
§ 1 Definitions
Accessible Code means source code contained within the Product that is unprotected and accessible under this agreement.
Authorised Machine means a single installation of a copy of the Product on a single physical computer.
Authorised Server Node means a single installation of a copy of the Product within a J2EE application server on a single physical server, which is either stand-alone or within a connected cluster.
Authorised Use means the defined number of copies or instances of the Product that may be used by the Licensee, and where applicable, limited to the number of Authorised Users, the number of Authorised Server Nodes and/or the number of Authorised Machines, as designated in the quote/invoice issued by codeclou.
Authorised User means a person or user account who or which is licensed to use the Product, regardless of whether that person or user account is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee.
Cloud Apps means apps that are designed to be used with Atlassian's hosted services, such as Atlassian's cloud offerings.
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Commencement Date means the date that codeclou processes payment of the Licence or Maintenance Fees from the Licensee.
Embedded Software means third-party software licensed by codeclou from a Licensor and embedded in the Product.
Forge Apps means Cloud Apps or components thereof that are developed using the Atlassian Forge Framework and hosted by Atlassian on the Marketplace Partner's behalf.
Free to Use means a License for the Authorised Use of the Product granted by codeclou without the need for the Licensee to pay a one-time fee.
Licence means the right to use the Product as defined by the Authorised Use.
Licence Fee means a one-time fee paid by the Licensee to codeclou, as designated by the Product, in consideration for the Authorised Use of the Product.
Licensee means the individual or entity (inclusive of subsidiaries) that has licensed the Product under the terms and conditions of this agreement.
Licensor means the licensor of the Embedded Software.
OEM Distribution means distribution of the Product as either a bundled app to, or embedded component of, another application with such application being made available to its users in forms such as, but not limited to, an on-premises application, a hosted application, software as a service, or a subscription service for which the distributor of the application receives a licence fee or any form of direct or indirect compensation.
Product means the codeclou product defined in the quote/invoice issued by codeclou to the Licensee, and which may contain Embedded Software, including any updates provided under the terms of this agreement.
Protected Code means source code contained within the Product that is protected against access by codeclou and is not accessible under this agreement.
§ 2 License Fee
The Licence Fee shall be payable upon acceptance of the terms and conditions set out herein and is non-refundable.
If the Product is offered as Free to Use for a specific version of the Product, codeclou shall be entitled, should the need arise, to charge a further Licence Fee for future versions of the Product.
§ 3 Grant of License
(1) Subject to the terms of this agreement, codeclou grants the Licensee a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable Licence to use, to copy and to revise the Product as defined by the Authorised Use.
(2) The right to copy the Licensed Product granted to the Licensee herein is limited to the installation of the Licensed Product on a computer system which is in the Licensee’s immediate possession and to fulfil the purpose of use and a copy thereof which is required for the loading, display, running, transfer or storage of the Licensed Product as well as to the right for an Authorised User to make a copy for security backup purposes, as stated in Sec. 69d (2) of the German Copyright Act.
(3) The right to revise the Licensed Product granted to the Licensee herein is limited to the maintenance or reinstatement of the agreed functionality of the Licensed Product.
(4) No more extensive rights to use and exploit the Licensed Product are granted to the Licensee.
§ 4 Limited warranty and liability
(1) The Product is provided on an “as is” and “as available” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that codeclou does not warrant that the Product will be error-free, complete, or correct.
(2) Defects must be notified in writing with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of the Licensee to inspect and notify defects.
(3) If the Licensee demands cure because of a defect, codeclou shall have the right to choose between improvement or replacement. The remedying of the defect may also take place through the delivery or installation of a new program version or a work-around. If the defect does not or not substantially impair the functionality, then codeclou shall be entitled, to the exclusion of further rights in the case of defects, to remedy the defect by delivering a new version or an update as part of its version, update and upgrade planning.
(4) codeclou shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming normal use of the Product arising from defects of the Product. This limitation of liability also applies to employees, representatives and bodies of codeclou.
(5) The foregoing limitation of liability shall not apply in cases of damage from injury to life, body or health due to intentional or negligent beach of duty by codeclou or intentional or negligent breach by a legal representative or a person used to perform an obligation of codeclou. Furthermore, it shall not apply in cases of damage of any other form arising from an intentional or grossly negligent breach of duty by codeclou or from an intentional or grossly negligent breach of duty by a legal representative of codeclou or a person used to perform an obligation of codeclou. As regards product liability, codeclou and its employees, representatives and bodies shall be liable in accordance with the German Product Liability Act.
§ 5 codeclou's obligations
(1) Upon receipt of the Licence Fee from the Licensee, codeclou shall
(a) supply the Licensee with the Product via electronic download or, in the case of Forge Apps, via cloud services and
(b) provide software maintenance for a relevant time as defined in Sec. 327f (1) of the German Civil Code.
(2) In the case of Forge Apps, the supply of the Product may be limited by usage limits as designated by Atlassian in the Developer Guidelines, as amended from time to time at https://developer.atlassian.com/platform/forge/platform-quotas-and-limits/. In these cases, codeclou shall not be obliged to provide use of the Product for the duration of the particular usage limits.
(3) Software maintenance includes codeclou provisioning to the Licensee Product updates and/or enhancements made generally available to customers in accordance with the requirements of Sec. 327f of the German Civil Code, and online technical support to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by codeclou personnel or contractors).
§ 6 Obligations of the Licensee
The Licensee must at all times:
(a) ensure that only Authorised Users may use the Product and only for Authorised Use in accordance with the terms and conditions of this agreement. In particular, all copies of the contract software as well as the access data shall be kept in a protected place;
(b) install, within forty-five (45) calendar days, those updates and enhancements specifically provided by codeclou to avoid or mitigate claims addressed by § 10 or § 11;
(c) advise codeclou in writing within thirty (30) calendar days if the Licensee becomes aware of any unauthorised use or distribution of the Product by any person; and
(d) with respect to any use of the Product, not remove or change any attribution to codeclou contained in the Product in the form of a logo, hyperlink to https://www.codeclou.io or similar, unless expressly permitted.
§ 7 Unauthorised use or distribution
(1) The Licensee may not, whether through a deliberate or negligent act or act of omission:
(a) distribute or cause the distribution of the Product to any third party other than an Authorised User; or
(b) directly access or use any Embedded Software independently of the Product.
(2) The Licensee shall be required to report its discovery of any such violations to codeclou, in writing within thirty (30) calendar days. In addition to any other right or claim that codeclou or the Licensor may have against the Licensee, any such violations shall entitle codeclou and/or its Licensors to retroactively charge the Licensee, in addition to any other fees payable by the Licensee under this agreement, a fee calculated based on the number of prohibited distributions times the respective list prices that codeclou and/or the Licensor charges for the Product or Embedded Software respectively.
(3) If codeclou reasonably suspects that the Product has been distributed to or obtained by any person or party without the prior written consent of codeclou, or that Embedded Software is being accessed or used independently of the Product, codeclou shall have the right to request from the Licensee an unqualified certificate executed by the Licensee's auditor at the Licensee's expense for the purpose of verifying compliance with Authorised Use of the Product or Embedded Software.
(4) In the event of such requests, which shall be made no more frequently than once per calendar year, codeclou shall provide at least thirty (30) calendar days written notice.
§ 8 Restrictions on the part of the Licensee
(1) The Licensee must not, without the prior written consent of codeclou, which may be withheld and which may include certain conditions:
(a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, the Protected Code; this restriction does not apply to decompiling under the terms of Sec. 69e (1) of the German Copyright Act and within the limits of Sec. 69e (2) of the German Copyright Act;
(b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine-readable form the Product or any data/information provided to the Licensee through the Product to a person;
(c) vary or amend the Authorised Use without the prior written approval of codeclou;
(d) publish, promote, broadcast, circulate or refer publicly to the codeclou name, trade name, trademark, service mark or logo, without the prior written consent of codeclou;
(e) commit any act or omission the likely result of which is that codeclou's 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 codeclou's interests.
(2) For avoidance of doubt, and subject to the terms and conditions contained herein, the Licensee shall be permitted to modify the Accessible Code to develop bug fixes, customizations, or additional features, solely for the purpose of using the Product as defined in, and during the term of, this Agreement.
(3) Under no circumstance may the Licensee distribute the Product via OEM Distribution without entering into a separate OEM Distribution agreement with codeclou. The Licensee shall also not copy or embed elements of the Accessible Code into other applications. In addition, the Product includes licence protection mechanisms that are designed to manage and protect the intellectual property rights of codeclou. The Licensee must not modify or alter those features to try to circumvent the Product use rules that the licence protection mechanisms are designed to enforce.
§ 9 Term and termination
(1) This agreement shall enter into force on the Commencement Date and continue in full force and effect until terminated in accordance with (2).
(2) This agreement may be terminated by either party if the other party commits a material breach. Either party shall have thirty (30) calendar days following receipt of written notice to remedy any material breaches. This shall not affect the termination of the contract in accordance with the other statutory provisions. With regard to a contract between codeclou and a consumer according to Sec. 13 of the German Civil Code, reference is made to the possibility of expiration of the right of withdrawal under Sec. 356 (5) no. 2 of the German Civil Code. Immediately upon termination, any Accessible Code in possession, custody or control of the Licensee must be destroyed and written confirmation of such destruction provided to codeclou.
§ 10 Infringement indemnification
(1) codeclou shall defend or settle, at its expense, any action brought against the Licensee based on the claim that the Product, if used within the scope of the Licence granted under this agreement, directly infringes a registered United States or European Union patent or copyright; provided, however, that:
(a) the Licensee notifies codeclou promptly in writing of any such claim and gives codeclou all powers of attorney and authorisations which are necessary in order to defend the Product against the third-party rights claimed;
(b) the Licensee does not enter into any settlement or compromise any claim without the prior written consent of codeclou;
(c) codeclou has sole control of any such action and settlement negotiations; and
(d) the Licensee provides codeclou with information and assistance, at codeclou's request and expense, necessary to settle or defend such claim. codeclou agrees to pay all damages and costs finally awarded against the Licensee by a court on the basis of such a claim.
(2) If the Product becomes, or in the opinion of codeclou may become, the subject of a claim of infringement of any third-party right, codeclou may, at its option and discretion:
(a) procure for the Licensee the right to use the Product free of any liability;
(b) replace or modify the Product to make it non-infringing; or
(c) refund any Licence Fees related to the Product paid by the Licensee.
(3) The Licensee shall defend or settle, at its expense, any action brought against codeclou based on the claim that any modifications to the Product or combination of the Product with other products infringes or violates any third-party right; provided, however, that:
(a) codeclou notifies the Licensee promptly in writing of any such claim;
(b) codeclou does not enter into any settlement or compromise any such claim without the Licensee's prior written consent;
(c) the Licensee has sole control of any such action and settlement negotiations; and
(d) codeclou provides the Licensee with information and assistance, at the Licensee's request and expense, necessary to settle or defend such claim. The Licensee agrees to pay all damages and costs finally awarded against codeclou attributable to such claim.
(4) Notwithstanding this clause, codeclou assumes no liability hereunder for, and shall have no obligation to defend the Licensee or to pay costs, damages or attorney's fees for, any claim based on any modifications to the Product not approved by codeclou or combination of the Product with products not approved by codeclou.
§ 11 Intellectual property
The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of codeclou or the Licensors and codeclou shall be entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product. codeclou and the Licensee agree to maintain each other's confidential information in strict confidence. The parties agree to not reveal each other's confidential information to any third party or to use each other's confidential information for any reason other than to exercise rights or obligations clearly contemplated by this agreement.
§ 12 Publicity rights
(1) codeclou shall be entitled to use the Licensee's name and/or logo on its website as a reference. For these purposes, the Licensee hereby grants codeclou a right of use to its trademark and logo rights that is free of charge and is unlimited in terms of location and time.(2) The Licensee may terminate the granting of the rights of use in accordance with the preceding paragraph with a notice period of one month in writing by registered mail, unless in individual cases a shorter notice period is mandatory, e.g. because there is a threat of infringement due to the granting of the usage rights or their use by codeclou.
§ 13 No assignment or amendment
The Licensee may assign this agreement to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) a government agency, if the Licensee is a supplier ; provided, however, that in each case, (a) codeclou 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 agreement; and (c) upon such assignment the Licensee makes no further use of the software licensed under this agreement. codeclou may assign its rights and obligations under this agreement without the Licensee's consent. Any permitted assignee shall be bound by the terms and conditions of this agreement.
§ 14 Tax
Payments made by the Licensee under this agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by codeclou, the Licensee must pay codeclou the amount of such taxes or duties in addition to the Licence Fee under this agreement, unless the Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. codeclou shall provide the Licensee with documents requested by the Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit.
§ 15 Governing law
(1) This agreement shall be governed by the laws of Germany, under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions.
(2) If the Licensee is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of Sec. 1 (1) of the German Commercial Code) or is a legal entity or special fund organised under public law, the courts in Nuremberg, Germany shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract. The same applies if upon the commencement of legal proceedings, the Licensee has no place of business or ordinary residence in the Federal Republic of Germany.
(3) In all other cases, codeclou or the customer may file suit before any court of competent jurisdiction under applicable law.