End User License Agreement (EULA)
Last updated March 10, 2019
IMPORTANT – PLEASE READ CAREFULLY AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (”EULA”). YOU ARE NOT AUTHORIZED TO USE THIS SOFTWARE UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS EULA.
This End User License Agreement (EULA) is a binding legal agreement between Bunney Apps Pty Ltd ABN 89 254 904 389 (hereinafter ”Licensor”), a provider of downloadable and cloud-based applications under the Bunney Apps brand name through the Atlassian Marketplace or any other means that interoperate with applicable Software manufactured by Atlassian Pty Ltd (hereinafter ”Atlassian”), and you (either an individual or a single legal entity you represent) whose details are provided to Bunney Apps upon purchase (hereinafter “Licensee” or “you”) for the materials accompanying this EULA, including the accompanying computer software, associated media, printed materials and any “online” or electronic documentation (hereinafter the “Software”).
1. License Rights and Restrictions
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
a) This EULA grants you the following rights:
Standard Use. For other than Free Use Software, the Licensor grants you a perpetual (subject to termination for breach), worldwide, non-exclusive, non-transferable, non-sub licensable license to install and use the Software in object code only, limited to the Scope of Use as designated in the Invoice issue by the Licensor.
Evaluation Use. The Licensor grants you a time-limited, worldwide, non-exclusive, non-transferable, non-sub licensable limited License to evaluate the Software. After the evaluation period is expired you must abide be either the Standard Use rights or the Free Use license rights.
Free Use. The Licensor may offer you a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable limited license for certain Software at no charge, including free accounts, trial use, and access to Beta Versions as defined below (”Free Use”). Your use of Free Use Software is subject to any additional terms specified by the Licensor and is only permitted for the evaluation period designated by Licensor. After the evaluation period is expired you must abide by the Standard Use rights, or must remove and delete all copies of the Software in your possession. You may not use Free Use Software for competitive analysis or similar purposes. The Licensor may terminate your right to use Free Use Software at any time and for any reason in its sole discretion, without liability to you. You understand that any pre-release and beta Software (”Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. The Licensor makes no promises that any Beta Versions will ever be made generally available. In some circumstances, the Licensor may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this paragraph. All information regarding the characteristics, features or performance of Beta Versions constitutes Licensor’s Confidential Information. To the maximum extent permitted by applicable law, the Licensor disclaims all obligations or liabilities with respect to Free Use Software, including any Support Services, warranty, and indemnity obligations.
b) Your license rights under this EULA are non-exclusive, non-transferable and non-sub licensable. You may not sell, transfer or convey the Software to any third party without Licensor’s prior express written consent. The Licensor reserves all rights not expressly granted to the Licensee in this EULA.
c) Standard Use licensees are permitted to make one (1) copy of the Software for data protection, archiving and backup purposes only and for no other purpose.
d) You may only install the Software and make the Software available for use on hardware systems owned, leased or controlled by you, or your third-party service providers so long as you remain responsible for their compliance with the terms and conditions of this EULA.
e) This EULA applies whether you purchase Software directly from Licensor, through the Atlassian marketplace, through an authorized Reseller or otherwise. If you purchase through a Reseller, your license rights shall be as stated in the Invoice issue by the Reseller to you, and the Reseller is responsible for the accuracy of any such Invoice. Resellers are not authorized to make any promises or commitments on the Licensor’s behalf, and the Licensor is not bound by any obligations to you other than what is included in this EULA.
2. Third Party Software
a) You acknowledge the Software may contain code licensed by the Licensor from third parties, including open source software, and embedded in the Software, and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of the third party software by you which is not in accordance with the use of the Software as permitted under the terms of this EULA.
b) The Software uses, requires and depends on various third party APIs. The Licensor disclaims any liability for any failure or limitations of these APIs or services. Atlassian, or any other API provider, may remove the API end points required for the Software to function properly. The Licensor disclaims any liability for the consequence of such actions by such third parties.
If you fall into the Standard Use category describe above, and you have not previously paid the license fee for the Software, then you must pay the license fee within the period indicated in the applicable Invoice issue by the Licensor or as otherwise provided in Licensor’s pricing terms as published on the Atlassian Marketplace. Failure to pay any license fees by the due date will result in the immediate termination of the license(s) granted under this EULA.
3. Price and Payment
4. Support Services
If you fall into the Standard Use category describe above,
a) The Licensor may provide you with online support services related to the Software (”Support Services”), in its discretion and for the sole purpose of addressing technical issues relating to the use of the Software. Support Services also include access to bug fixes, patches, modifications, or enhancements (together, “Releases”) to the Software that the Licensor makes generally commercially available during the “Support Period”. When accepted by you, any such Releases will be considered part of the Software and subject to the terms of this EULA.
b) The Initial Support Period for each Software is for twelve (12) months starting at the time each Software is purchased and may be renewed for additional twelve (12) month periods (each, a “Renewal Period”) at the then-current rate for Support Services. Renewal Periods commence upon the expiration of the prior Support Period regardless of when the Software is purchased.
c) Use of Support Services, if any, is governed by Licensor’s policies and programs described in any user manual, in online documentation, and/or other Licensor-provided materials. Any supplemental software code provided to you as a part of Support Services will be considered part of the Software and subject to the terms of this EULA.
d) All deliveries of Software will be electronic. For the avoidance of doubt, you are responsible for the installation of any Software.
e) The Licensor encourages feedback from its customers. If you have any feedback regarding your purchase or use of the Software, please provide that feedback to the Licensor at email@example.com.
If you fall into the Standard Use category describe above, Licensor may, from time to time, during the Support Period, modify or upgrade the Software. When accepted by you, any such modified code or upgrades to the Software will be considered part of the Software and subject to the terms of this EULA.
From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Licensor, or in the course of receiving Support and Maintenance (”Feedback”). The Licensor may in connection with any of its Software or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Licensor’s right to independently use, develop, evaluate, or market Software, whether incorporating Feedback or otherwise.
You may terminate your license to the Software at any time by destroying all your copies of the Software. Your license to the Software shall automatically terminates if you fail to comply with the terms of this EULA. Upon termination of your license, you are required to remove all Software from your computer systems and destroy any copies of the Software in your possession.
7. Termination Rights
a) The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. The 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.
b) All title and copyrights in and to the Software (including but not limited to any images, icons, text files, pdfs or other static non-code assets contained within the Software), the accompanying printed materials, and any copies of the Software, are owned by the Licensor or its suppliers. This EULA does not grant you any rights to use such content. If the Software contain documentation that is provided only in electronic form, you may print one copy of such electronic documentation. Except for any copies of this EULA, you may not copy the printed materials accompanying the Software.
c) Other than as allowed by this EULA, you may not reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide non-authorized users with access to the Software.
d) You may not copy or embed elements of the Source Code into other applications, or publish, transmit or communicate the Source Code to other parties other than yourself or the entity you represent.
The Licensee grants the Licensor the right to include the Licensee’s company name, logo, and/or likeness that you provide during registration, and any review that Licensee may provide (in full or in part) to Licensor, within Software promotional material and on Licensor’s web site. Licensee can revoke this right at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from future Software promotional material. Requests made may take thirty (30) calendar days to process.
9. Publicity Rights
You may not use or otherwise export or re-export any Software(s) except as authorized by United States law and the laws of the jurisdiction in which the Software(s) was obtained. In particular, but without limitation, the Software(s) may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software(s), you represent and warrant that you are not located in any such country or on any such list.
10. Export Restrictions
Save as provided in Sections 12 and 13 below, the Software 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, merchantability, fitness for a particular purpose, or title. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. The Licensor shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Licensor. To the maximum extent permitted by law, the Licensor does not make any representation, warranty or guarantee that the Software will be secure or error-free; the Software will meet your requirements or expectations; and that errors or defects will be corrected.
11. Disclaimer of Warranties
a) If you purchase a Standard Use license, and if the Software becomes, or in the opinion of the Licensor may become, the subject of a claim of infringement of any third party right, the Licensor may, at its option and in its discretion: (i) procure for Licensee the right to use the Software free of any liability; (ii) replace or modify the Software to make it non-infringing; or (iii) refund any license fees paid by you for the current Support Period for that Software.
b) Licensee will defend or settle, at Licensee’s expense, any action brought against the Licensor based upon the claim that any modifications to the Software or combination of the Software with other, third-party, Software infringes or violates any third party right, and only to the extent that such modification or combination contributes to such claim; provided, however, that: (i) the Licensor shall notify Licensee promptly in writing of any such claim; (ii) the Licensor shall not enter into any settlement or compromise any such claim without Licensee’s prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) the Licensor shall provide Licensee with information and reasonable assistance, at Licensee’s request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against the Licensor attributable to such claim.
c) Licensee agrees to indemnify and hold Licensor, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of Licensee’s use of the Software, or Licensee’s violation of the EULA or any rights of a third party.
d) The Licensor assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney’s fees for, any claim based upon any modifications to any of the Software not approved by the Licensor, and only to the extent that such modification contributes to such claim.
12. Infringement Indemnification
a) Except for the indemnification obligations of Section 12 or breach of Sections 3 or 8, neither party will be liable to any person, with respect to any loss, damage, cost, expense or other claim, for any consequential, direct, indirect, special, punitive or other damages in relation to the Software including, without limitation: (i) any use or reliance on a Software by the person (including the form and content of errors in and/or omissions from any information contained in the Software); (ii) any delay, interruption or other failure in the provision of a Software; or (iii) any change in the form or content of a Software.
b) In no event will Licensor’s aggregate liability under any claims arising out of this EULA exceed the fees paid by you for the current Support Period, except where not permitted by applicable law, in which case Licensor’s liability shall be limited to the maximum extent allowed by such applicable law.
c) Except for each party’s indemnification obligations or breach of Sections 3 or 8, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Section 10 are not allowed by applicable law, then the liability of Licensor, and the remedy of Licensee, shall be limited to: (i) the re-supply of any defective Software; or (ii) the refund of the license fees paid by you for the current Support Period for such defective Software.
13. Limitation of Liability
The parties agree that this EULA will be governed by and construed and interpreted in accordance with the laws of the State of Queensland, Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the federal court of Australia and state courts of Queensland, Australia. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.
No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
16. No Waiver
Licensee may assign this EULA to succeeding parties in the case of a merger, acquisition or change of control; provided, however, that in each case, (i) the Licensor is notified in writing within ninety (90) days of such assignment, (ii) the assignee agrees to be bound by the terms and conditions contained in this EULA and (iii) upon such assignment the assignee makes no further use of the Software(s) licensed under this EULA. The 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 EULA.
This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein. This EULA may not be modified or amended by you without Licensor’s written agreement (which may be withheld in Licensor’s complete discretion).
18. Entire Agreement
For communications concerning this EULA, please write to email@example.com.