IMPORTANT – PLEASE READ THIS AGREEMENT!
- This End User Agreement ("Agreement") is a binding legal document between Atlassian and you, which explains your rights and obligations as an End User of Atlassian products. "End User" means either (a) you as an individual or (b) your company, if you are using Atlassian products in your capacity as an employee or agent of a company. You identify the specific "End User" during the registration process. "Atlassian" means Atlassian Pty Ltd (ABN 53 102 443 916) of Level 6, 341 George Street, Sydney, NSW 2000, Australia.
- By allowing the "I Agree to the terms and conditions of the End User Agreement" box to remain checked, or by installing or using any Atlassian products, End User agrees to be bound by this Agreement. If you do not agree to this Agreement, then uncheck the "I Accept" box and do not install or use Atlassian products.
- From time to time, Atlassian may modify this Agreement, including any referenced policies and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically. By using any Product after any modifications, End User agrees to all of the modifications.
1. Introduction to Atlassian's Products and License Terms.
1.1 What's Included in "Software". Atlassian offers many different software products for download, including JIRA, Confluence, and others. "Software" means any Atlassian product that End User orders from Atlassian (or an Atlassian Expert, as described below) and downloads from Atlassian. The term also includes (a) related documentation, (b) any Updates (defined below) to the Software, (c) any add-ons, plug-ins, APIs or Internet-based components of the Software provided by Atlassian (but not third parties) ("Supplementary Software"), and (d) any third party software embedded in or provided with Atlassian's software ("Embedded Software"). End User's detailed rights to use Software are in Section 2 below. To be clear, any add-ons, plug-ins, APIs or other code offered by third parties (through the Atlassian Marketplace or otherwise) or created by End User itself are not "Software", and Atlassian is not responsible for and does not offer any warranty, indemnity or support for those items.
1.2 What's Included in "Hosted Services". "Hosted Services" include any Atlassian online services products that End User orders, which can include "OnDemand" versions of many Atlassian Software products, the Bitbucket hosting service ("Bitbucket"), and other online services provided by Atlassian. "Hosted Services" always means the version of the Hosted Services as described in Atlassian's then-current product descriptions. End User's detailed rights to use Hosted Services are in Section 3 below.
1.3 The "Products". This Agreement uses "Products" to refer to the Software and/or the Hosted Services.
1.4 Atlassian's Maintenance Offerings. For additional fees, Atlassian offers "Maintenance" to End Users as described at http://confluence.atlassian.com/display/Support/Atlassian+Support+Offerings. Maintenance includes (1) any generally released updates, upgrades, patches, and bug fixes for the Software ("Updates") when and if generally released at Atlassian's sole discretion, (2) web-based support and phone support (depending on End User's support level) as described in the link above, and (3) other support features as described in the link above.
1.5 Limits on Authorized Users. When buying a license to the Software or a subscription to the Hosted Services, End User pays fees for a specific number of users, which are counted based on number of then-authorized users for Software and number of seats or logins for Hosted Services ("Authorized Users"). End User designates Authorized Users through the Products. Authorized Users may include End User's employees, representatives, consultants, contractors, agents, and Customers (note: detailed rules for Customers in Section 4.4 below). End User may add Authorized Users for additional fees. End User is responsible for all use of the Products by its Authorized Users and their compliance with this Agreement.
1.6 Purchase through "Atlassian Experts" (Resellers). Fees are payable directly to Atlassian as described in Section 5 (Fees and Payment) below unless End User ordered the Products from an Atlassian authorized reseller ("Atlassian Experts"). If End User ordered Products from an Atlassian Expert, then the sections of this Agreement referring to orders with Atlassian or payments to Atlassian do not apply for those Products. Instead, End User agrees to pay the Atlassian Expert the fees separately agreed with the Atlassian Expert. No Atlassian Expert may change the terms of this Agreement (but they may impose additional restrictions on use of the Products). No promises, warranties or agreements by Atlassian Experts are binding on Atlassian.
2. License to Use Atlassian Software.
2.1 Software, Generally. Atlassian grants End User a worldwide, non-exclusive, non-transferable, non-sublicenseable right to use the Software, subject to the terms and conditions of this Agreement. Software licenses are perpetual unless terminated as described in this Agreement. Only Authorized Users may use the Software, and only up to the permitted number of concurrent Authorized Users (except for Non-Production Purposes, as described below). All use of Software must be in accordance with the relevant Atlassian documentation and policies. End User may make a limited number of copies of the Software as is strictly necessary for purposes of data protection, archiving, backup, and testing and internal development (e.g., of End User Modifications or End-User Plug-ins, as defined below, but not development of End User's unrelated products or services) ("Non-Production Purposes"). For clarity, End User's employees and contractors may use the Software for these Non-Production Purposes, and End User will be responsible for their compliance with this Agreement on all the same terms as for Authorized Users, except that these users will not count against End User's limit of Authorized Users, and End User will not need to pay additional fees for these users. Unless Atlassian agrees otherwise in writing, End User may only install, use or make available the Software on End User's hardware systems, whether owned, leased or controlled. End User will be responsible for any use of the Software on any hardware systems not owned, leased or controlled by End User ("Uncontrolled Systems").
2.2 Updates and Supplementary Software. The terms for Software in this Agreement apply to any Updates and Supplementary Software, unless Atlassian provides different terms. Atlassian may cease making available Supplementary Software and Internet-based services used with the Software (e.g., the Atlassian Plugin Checkup tool) at any time.
2.3 Open Source Software. The Software may contain or be provided with components subject to the terms and conditions of "open source" software licenses ("Open Source Software"). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.
2.4 Evaluation Software. This paragraph applies to any Software that Atlassian makes available on an evaluation basis ("Evaluation Software"). End User may only use the Evaluation Software for internal evaluation purposes for the period specified by Atlassian (or, if not specified, for 30 days), and may only permit a limited number of users (specified by Atlassian) to access the Evaluation Software. After the evaluation period, End User must delete all copies of the Evaluation Software. End User acknowledges that Evaluation Software may not be fully functional. Notwithstanding anything else in this Agreement, Atlassian does not offer any warranty, indemnity or support for any Evaluation Software.
2.5 Source Code. Atlassian may provide some elements of Software in source code form ("Source Code"). Unless otherwise specified, End User may modify Source Code solely to develop bug fixes, customizations, and additional features ("End User Modifications") and, notwithstanding anything else in this Agreement, may only use End User Modifications internally for purposes of using the Software licensed from Atlassian. Atlassian will have no support, warranty, indemnity or other obligations relating to, and assumes no liability for, any End User Modifications or any effect they may have on the operation of the Products.
2.6 IP Protection Mechanisms. The Software has license protection mechanisms designed to manage and protect Atlassian's and its suppliers' and licensors' intellectual property rights. Whether using Source Code or not, End User must not modify or alter these mechanisms or try to circumvent them or the usage rules they are designed to enforce.
3. Use of Atlassian Hosted Services.
3.1 Access Rights. End User may access and use the Hosted Services during the applicable Subscription Term (defined below), subject to the terms and conditions of this Agreement. Only Authorized Users may use the Hosted Services, and only up to the permitted number of Authorized Users. All use of the Hosted Services must be in accordance with the relevant Atlassian documentation and policies.
3.2 Subscription and Renewals. End User selects its initial subscription term, which may be a month, quarter, year, or other mutually agreed period, at the time of order. Once that term expires, it will automatically renew for successive terms of the same period (but no longer than 1 year each) unless either End User or Atlassian notifies the other of non-renewal at least 5 business days prior to the upcoming expiration date or Atlassian ceases to make a particular Hosted Service available. Renewals are charged at Atlassian's then-current rates unless otherwise agreed, and Atlassian will at its discretion charge End User using the credit card on file on or after the expiration date or send End User an invoice. "Subscription Term" means the initial term and any renewal term(s).
3.3 Evaluations. For evaluations of Hosted Services, the "Subscription Term" does not apply. Instead, the evaluation period is specified by Atlassian. Atlassian may notify End User of the remaining number of days through the Hosted Services. Notwithstanding anything else in this Agreement, Atlassian does not offer any warranty, indemnity or support for any Hosted Services offered on an evaluation basis.
3.4 End User Data. Unless otherwise specified, End User retains ownership of any data or other content or information that End User provides through the Hosted Services, including any code uploaded to Bitbucket (as described below) ("End User Data"). End User's use of the Hosted Services and all End User Data must comply with End User's own privacy policies and all domestic, foreign and international laws and regulations, including those relating to data privacy, international communications, and the exportation of technical or personal data. End User is solely responsible for the accuracy, content and legality of all End User Data. End User agrees not to submit any content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, that encourages conduct that would be considered a criminal offense or give rise to any civil liability. End User will not submit any material (including any virus, bot, worm, scripting exploit or other harmful code) that is likely to harm or corrupt the Hosted Services or any computer systems or data. End User represents and warrants to Atlassian that it has sufficient rights in the End User Data to grant the rights in this section and that the End User Data does not infringe the rights of any third party. End User agrees that Atlassian may, in its sole discretion, delete or remove any End User Data at any time and with or without notice.
End User hereby grants Atlassian a non-exclusive license to copy, distribute, perform, display, store, modify, and otherwise use End User Data in connection with operating the Hosted Services.
Atlassian may also use aggregate information to measure general Hosted Service usage patterns and characteristics of its user base and otherwise to improve its products and services, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it will be not traceable to a specific recipient or user email address.
3.5 Special Terms for Bitbucket. This paragraph applies to Bitbucket. If End User runs a Bitbucket repository, End User represents and warrants that it will accurately designate both the license under which the code in the repository is licensed to third parties and the project license for any contributions by collaborators. Project collaborators should carefully read all third party licenses before using any code or contributing any code. End User agrees to use Bitbucket solely as a code repository and not to upload any other content to Bitbucket (e.g., music or video). END USER ACKNOWLEDGES THAT ALL CODE MADE AVAILABLE THROUGH BITBUCKET IS THE RESPONSIBILITY OF THE ENTITY THAT MAKES IT AVAILABLE. ATLASSIAN IS NOT THE LICENSOR OF ANY THIRD PARTY CODE MADE AVAILABLE THROUGH BITBUCKET AND TAKES NO RESPONSIBILITY FOR SUCH CODE.
3.6 Storage Limits. Atlassian sells 1 GB blocks of storage for End User Data at the rates specified when End User orders Hosted Services. Use in excess of purchased storage will count as an overage, and any overages are charged at $1.00 per month for the next 1 GB block or Atlassian's then-current rate. Atlassian may create or modify maximum storage limits for the Hosted Services at any time, in its discretion, and End User acknowledges that it may not receive notices about these limits. Note: This paragraph does not apply to storage on Bitbucket.
3.7 Return of End User Data. After termination or expiration of a Subscription Term or this Agreement, unless it was for End User's breach, at End User's request, Atlassian will use reasonable efforts to make available the End User Data for download. If made available, End User must download the End User Data within 30 days of termination or expiration. After that, Atlassian may delete the End User Data.
3.8 End User Responsibility for Systems. End User is responsible for its own Internet connection and must use software, systems and equipment compatible with the Hosted Services, as Atlassian specifies in its published policies. Any End User web browsers and other software must support the Secure Socket Layer (SSL) protocol or other protocols accepted by Atlassian. Atlassian's security measures are described at http://www.atlassian.com/hosted/security. Atlassian is not responsible for any End User Data lost, altered, intercepted or stored across networks not owned or operated by Atlassian.
4. Important Customer Obligations
4.1 Accounts and Passwords. End User will provide accurate, current and complete information when registering with Atlassian and ordering Products and agrees to update its information if it changes. This is important, because Atlassian may send notices, statements and other information to End User by email or through End User's account (for Hosted Services). End User will keep all its Authorized Users' passwords and usernames confidential and will not share them with third parties. End User is responsible for all actions taken through its accounts.
4.2 Embedded Software. All of the other restrictions for Software in this Agreement also apply to Embedded Software Software, with the addition of the following terms. End User receives restricted licenses to Embedded Software and may use Embedded Software only for its internal purposes (including for Customer Use as permitted below) in conjunction with the applicable Product as provided by Atlassian, and may only use the Embedded Software as part of and through that Product. End User may not install, access, configure or use any Embedded Software (including any APIs, tools, databases or other components of any Embedded Software) separately or independently of the rest of the Product, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any Embedded Software components, or permit anyone else (including Customers) to do any of these things. Notwithstanding any other terms of this Agreement, End User may not modify any Embedded Software. End User will be financially responsible to the applicable third party licensor ("Embedded Software Licensor") for all damages and losses resulting from End User's or its Customers' breach of this Agreement. End User may not "benchmark" or otherwise analyze performance information for individual Embedded Software elements.
Some Embedded Software may include source code provided as part of the Embedded Software Licensor's standard shipment. That source code will be governed by the terms for Embedded Software in this Agreement, and not the terms for Source Code in Section 2.5 (Source Code) above.
End User understands that the applicable Embedded Software Licensor retains all ownership and intellectual property rights to the Embedded Software. Embedded Software Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of this Agreement with respect to the items they license and may enforce this Agreement directly against End User; but, to be clear, Embedded Software Licensor do not assume any of Atlassian's obligations under this Agreement. In addition, End User agrees to the Embedded Software-related audit provisions in Section 6 (License Certifications and Audits) below.
Embedded Software may include or be accompanied by third party technology that may be appropriate or necessary for use with some Embedded Software. Such technology may be specified in the Documentation or otherwise specified by Atlassian, and is licensed to End User only for use with the Product with which it is provided under the specified third party license terms, and not this Agreement. Atlassian may also provide additional or substitute terms for Embedded Software if required by the Embedded Software Licensor, and End User will comply with those terms.
4.3 Rules for Plug-ins. End User may develop its own plug-ins for various Products ("End User Plug-ins") and may distribute End User Plug-ins to third parties, but only for those Products permitted by Atlassian, and only in accordance with Atlassian's published plug-in and API guidelines. End User Plug-ins distributed through the Atlassian Marketplace will be subject to the posted terms for the Atlassian Marketplace.
4.4 Use by End User's Customers. End User's customers ("Customers") may be Authorized Users. End User will be responsible for Customers the same as any other Authorized User and must enter into valid, binding agreements with Customers consistent with this Agreement, including the additional conditions below. A Customer's permitted use of Products under this Agreement is called "Customer Use".
In addition to all other terms in this Agreement, the following conditions apply to Customer Use:
(a) End User may not distribute or make available any Product on a standalone basis. Instead, End User may only make available the Product to Customers in order to support Customers' use of content and features that are part of End User's own existing offerings. Examples would include End User using: (i) Confluence as a tool to provide customer-facing knowledge base articles or technical documentation; (ii) Confluence as a customer-facing extranet for discussions, project updates, and centralized knowledge-sharing source about End User's own products and services unrelated to the Products; (iii) JIRA to collect direct customer feedback on application development (e.g. JIRA Mobile Connect, Bonfire) ; and (iv) JIRA as a customer-facing helpdesk or support system.
(b) End User may not resell or OEM the Product or otherwise charge Customers for use of the Product itself, but may charge End Users as part of an overall program that includes access to End User content or features as supported by the Product. Example: A paid support offering that includes, as a minor component, access to the support forum.
(c) Customers may interact with the Product, but may not receive any administrator, configuration or similar access to the Product. Example: Customers may post comments in a JIRA issue, but End User may not permit any Customer to administer project and global site level configurations.
(d) In making available Products to Customers, End User may not violate any other term or condition in this Agreement, such as reverse engineering and anti-circumvention restrictions.
Atlassian will not have any direct or indirect liability or obligation to any Customers, and Customers do not acquire any rights under this Agreement.
Atlassian understands that Product usage may be flexible and that End Users may identify new proposed uses for the Products. If End User has questions about whether a proposed use complies with these rules, please contact Atlassian at firstname.lastname@example.org.
4.5 Conditions on Use of Products. End User will not, and will not allow any Authorized User or other third party to: (a) resell, assign, rent, give, transfer, pass title to, lease, copy, provide access to or sublicense (including without limitation on a timeshare, subscription service, hosted service or outsourced basis) any Product to any third party (for use in its business operations or otherwise) or anyone else besides Authorized Users (including Customers) in accordance with this express terms of this Agreement, or permit anyone besides Authorized Users to use any data or information not owned by End User that is generated by the Products (and, in the event End User grants any security interest in any Products, the secured party has no right to use or transfer the Products); (b) use any Product to provide, or incorporate any Product into any product or service provided to, a third party, except as expressly permitted above for Customer Use; (c) reverse engineer, decompile, disassemble, decipher, decrypt, or otherwise seek to discover or obtain the source code or non-public APIs to Products (including any data structure or similar materials produced by the Products), except to the extent expressly permitted by applicable law despite this prohibition (and then only upon advance notice to Atlassian); (d) modify, adapt or create derivative works of a Product (excluding End User Modifications and End User Plug-ins); (e) remove or obscure any proprietary or other notices of Atlassian or any third party contained in any Product (including any information or data generated by the Products); (f) publicly disseminate information regarding the performance of Products; (g) use any Product for commercial solicitation purposes or spam; (h) use the Atlassian name or any Atlassian trademarks or logos except as permitted in Section 4.6 (Attribution); or (i) commit any act or omission that could result in damage to Atlassian's or its suppliers' or licensors' reputations. End User will not attempt to do any of the foregoing, encourage others to do so, or otherwise attempt to bypass or circumvent any usage restrictions in this Agreement.
4.6 Attribution. In any use of the Software, End User must include the following attribution to Atlassian on all user interfaces in the following format: "Powered by Atlassian", which must in every case include a hyperlink to http://www.atlassian.com, and which must be in the same format as delivered in the Software.
4.7 Export Control. If a Product is acquired in Australia by End User, End User must comply with all applicable Australian export control laws and regulations, including the laws and regulations administered by the Australian Department of Foreign Affairs and Trade (or any replacement department or authority). If a Product is acquired by End User in the United States, End User acknowledges that the Product is subject to U.S. export jurisdiction and agrees to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. In any case, the import and export of any Product may be subject to control or restriction by applicable local law. End User is solely responsible for determining the existence and application of any such law to any proposed import and export and for obtaining any needed authorization. End User agrees not to export, directly or indirectly, any Product (or any direct product thereof) from any country in violation of applicable laws.
4.8 Indemnification. End User will indemnify, defend and hold harmless Atlassian from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by End User (including any Authorized Users) of this Agreement, (b) any End User Data, (c) any End User Modifications, End User Plug-ins or other modifications of or combinations with a Product, or any service or product offered by End User in connection with or related to a Product, (d) any Uncontrolled Systems, or (e) any representations or warranties made by End User (including any Authorized User) regarding a Product to third parties. This indemnification obligation is subject to End User receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for End User to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided that Atlassian may participate in the claim at its own expense and End User may not settle any claim without Atlassian's prior written consent; and (iii) all reasonable necessary cooperation of Atlassian at End User's expense.
5. Fees and Payment
5.1 General. End User must pay all fees by their due date specified at the time of order or otherwise within 30 days of Atlassian's invoice or notice. Renewal fees for Hosted Services will be charged as described in Section 3.2 (Subscription and Renewals). Late payments are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses. End User will continue to be charged during any period of suspension. In event of any termination, End User will pay the unpaid balance due calculated in accordance with this section and this Agreement. Atlassian may charge such unpaid fees and charges to End User's credit card or otherwise bill End User for such unpaid fees and charges. End User acknowledges that it is not relying on the future availability of any Products (including any Embedded Software) in agreeing to or making its payments hereunder.
5.2 Taxes. Payments made by End User under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Atlassian, End User must pay to Atlassian the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, End User may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, End User will have the right to provide to Atlassian with any such exemption information and Atlassian will use reasonable efforts to provide such invoicing documents as may enable End User to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
5.3 Special Terms for JIRA Studio and EC2 Hosted Service. End Users of JIRA Studio who wish to make use of Atlassian's Bamboo continuous integration application available within the JIRA Studio development suite must complete a registration with Amazon Web Hosted Services ("AWS") for Amazon's Elastic Cloud Hosted Service (EC2) ("EC2 Hosted Service"). The EC2 Hosted Service enables End Users to use Elastic Bamboo, which dynamically creates and runs remote agents in the Amazon Elastic Compute Cloud. Notwithstanding anything to the contrary in this Agreement, the EC2 Hosted Service is not part of the Hosted Services and fees paid to Atlassian do not include fees for the EC2 Hosted Service. End Users using the EC2 Hosted Service will be charged directly by AWS and will be solely responsible for payment of all fees to AWS. Additional information is available on the EC2 Hosted Service and at: http://www.atlassian.com/software/bamboo/overview/tour/scaling-up, http://confluence.atlassian.com/display/BAMBOO/Elastic+Bamboo+Costs, and http://aws.amazon.com/ec2/.
6. License Certifications and Audits
Upon Atlassian's written request, End User will provide Atlassian with a signed certification certifying that all Products are being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) days, Atlassian (or its authorized agent) may audit the use of the Products by End User and its Authorized Users and any Customers, provided such audit is during regular business hours. End User will provide reasonable assistance and access to information in the course of any audit. End User is responsible for such audit costs only in the event the audit reveals that End User's use of the Products is not in accordance with the permitted scope of use. In the event that any certification or audit reveals that End User has exceeded its permitted number of Authorized Users, Atlassian may invoice End User for any past or ongoing excessive use and End User will pay the invoice in accordance with Section 5 (Fees and Payment). This remedy is without prejudice to any other remedies available to Atlassian at law or equity or under this Agreement.
End User understands that Atlassian may report audit results to any applicable Embedded Software Licensor or may assign the right to audit End User in this Section 6 to Embedded Software Licensors. When the audit is assigned, then notwithstanding anything else in this Agreement to the contrary, End User Licensor will not be responsible for End User's costs incurred in cooperating with the audit.
7. Atlassian's Ownership Rights; Feedback
Atlassian and its licensors reserve all rights not expressly granted to End User in this Agreement. The Products (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. Atlassian or its licensors own the title, copyright, and other intellectual property rights in the Products and all copies, modifications and derivative works of the Products and underlying software (including any incorporating Feedback) ("Atlassian Technology"), and End User does not acquire any ownership rights in Atlassian Technology. All Products are licensed, not sold.
"Feedback" means any feedback, comments, suggestions or materials (including, to the extent disclosed to Atlassian, any End User Modifications, but excluding End User Plug-ins) that End User may provide to Atlassian about or in connection with the Products, including any ideas, concepts, know-how or techniques contained therein. End User may provide Feedback in connection with Maintenance and otherwise. End User hereby grants Atlassian a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Products. End User agrees that Atlassian may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed End User's Confidential Information, and nothing in this Agreement (including Section 8 (Confidentiality)) limits Atlassian's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in Section 7 (Atlassian's Ownership Rights; Feedback) above, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains ("Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Atlassian Technology, performance information relating to the Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Atlassian without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
This Agreement will continue so long as End User has a license to the Software or an ongoing Subscription Term for the Hosted Services, unless earlier terminated. Atlassian may suspend or terminate this Agreement and End User's account, with respect to one or more of the Products, if End User fails to comply with the terms and conditions of this Agreement, including any failure to pay fees when due. Atlassian may terminate any free account or evaluation usage at any time in its sole discretion.
End User may terminate this Agreement at any time with notice to Atlassian.
Immediately upon termination of any license or subscription right granted under this Agreement, End User's license to Software and Hosted Services will cease, and End User must at its own cost: (a) cease using (and require all Authorized Users, and anyone else to cease using) all the terminated Products; (b) remove all copies of Software from its computer systems and any Uncontrolled Systems; and (c) return to Atlassian all Software or provide Atlassian with written certification that it has destroyed all copies of the Software and other Atlassian Confidential Information in its possession, custody or control. Upon termination of this Agreement for whatever reason, End User will not be entitled to credits or refunds for any unused portion of this Agreement, including but not limited to unused maintenance and support.
All payment and other obligations accrued as of the date of any expiration or termination of this Agreement, and Sections 4.5 (Conditions on Use of Products), 4.7 (Export Control), 4.8 (Indemnification), 5 (Fees and Payment), 6 (License Certifications and Audit), 7 (Atlassian's Ownership Rights; Feedback); 8 (Confidentiality), 9 (Termination), 11 (Warranties; Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Publicity Rights) 14 (Assignment), 15 (Governing Law and Arbitration), 16 (DMCA Notices), 17 (Government End Users) and 18 (General) will survive expiration or termination.
10. Atlassian Infringement Indemnification
Subject to the remainder of this Section 10, Atlassian will indemnify, defend and hold End User harmless against a claim to the extent based on an allegation that End User's use of a Product (in the form provided by Atlassian) in compliance with this Agreement infringes a United States or European Union patent or registered copyright ("Claim"), and will pay those damages and costs finally awarded against End User by a court of competent jurisdiction, or agreed to in writing by Atlassian as settlement, as a result of such Claim, provided that Atlassian is (i) promptly notified and furnished a copy of such Claim, (ii) given all relevant evidence in End User's possession, custody or control, and (iii) given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement. Atlassian will have no obligation to defend and no liability for any damages or costs to the extent that a Claim is based upon: (i) use of a Product in combination with any non-Atlassian product, software or equipment; (ii) use of a Product in a manner or for an application other than for which it was designed or intended to be used, regardless of whether Atlassian was aware of or had been advised of such use; (iii) modifications to a Product by any person or entity other than Atlassian (including any End User Modifications); or (iv) other circumstances or occurrences that are covered in End User's indemnification obligations in Section 4.8.
If a Product becomes, or in the opinion of Atlassian may become, the subject of a Claim, Atlassian may, at its option and in its discretion: (i) procure for End User the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) terminate End User's right to continue using such Product and refund, in the case of Software, any license fees related to this Software paid by End User (depreciated on a three-year straight line basis) or, in the case of a Hosted Service, any prepaid amounts for the service no longer being provided.
This Section 10 states the sole liability of Atlassian and the exclusive remedy of End User for any infringement of intellectual property rights in connection with any Product or other items provided by Atlassian under this Agreement.
11. Warranties; Disclaimers of Warranties
11.1 General. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if End User is an entity, this Agreement and each order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
11.2 DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, ATLASSIAN AND ITS THIRD PARTY SUPPLIERS/LICENSORS PROVIDE THE PRODUCTS (INCLUDING THE HOSTED SERVICES, SOFTWARE AND ANY MAINTENANCE) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. WITHOUT LIMITING THE FOREGOING, ATLASSIAN AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY (1) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, (2) THAT (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PRODUCTS WILL MEET END USER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY END USER THROUGH THE PRODUCTS WILL MEET END USER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGIONG, TO THE MAXIMUM EXTENT PERMITTED BY APPLICBLE LAW, ATLASSIAN AND ITS THIRD PARTY SUPPLIERS/LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO, AND ASSUME NO LIABILITY FOR, ANY PRODUCTS PROVIDED ON AN EVALUATION BASIS. IN ADDITION, ATLASSIAN AND ITS THIRD PARTY LICENSOR/SUPPLIERS 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 ATLASSIAN.
END USER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
11.3 Hosted Services Facilities. The Hosted Services are controlled and operated from facilities in the United States. Atlassian makes no representations that the Hosted Service is appropriate or available for use in other locations. Those who access or use the Hosted Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
12. Limitation of Liability
12.1 MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO THE PARTIES' INDEMNIFICATION OBLIGATIONS IN SECTION 4.8 AND 10 OR END USER'S BREACH OF ANY LICENSE OR USE RESTRICTIONS RELATING TO THE PRODUCTS, NOTWITHSTANDING ANY DAMAGES EITHER PARTY MIGHT INCUR FOR ANY REASON WHATSOEVER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF EITHER PARTY TO THIS AGREEMENT UNDER ANY PROVISION OF THIS AGREEMENT AND THE OTHER PARTY'S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES SUCH PARTY INCURS, UP TO THE AMOUNT ACTUALLY PAID BY END USER FOR (A) SUCH SOFTWARE, DEPRECIATED ON A THREE-YEAR STRAIGHT LINE BASIS, OR (B) SUCH HOSTED SERVICE IN THE LAST TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMBEDDED SOFTWARE LICENSORS WILL NOT BE LIABLE TO END USER FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT DAMAGES OR THE TYPES OF DAMAGES DISCLAIMED IN SECTION 12.2 BELOW.
12.2 OTHER DISCLAIMERS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR END USER'S BREACH OF ANY LICENSE OR USE RESTRICTIONS RELATING TO PRODUCTS, IN NO EVENT SHALL EITHER PARTY (OR THEIR RESPECTIVE THIRD PARTY SUPPLIERS/LICENSORS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE) WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT. END USER SPECIFICALLY UNDERSTANDS AND AGREES THAT ATLASSIAN (ON BEHALF OF ITSELF AND ITS THIRD PARTY SUPPLIERS/LICENSORS) DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO LOSS, LOSS OF USE OR CORRUPTION OF ANY END USER DATA (OR OTHER DATA END USER MAY PROVIDE) AND THE COSTS OF PROCUREMENT OF ANY SUBSTITUTE GOODS.
12.3 Failure of Essential Purpose. The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12.4 Force Majeure. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.
13. Publicity Rights
Atlassian may identify End User as a customer in Product promotional material. End User may request that Atlassian cease identifying End User at any time by submitting an email to email@example.com. Requests may take 30 days to process.
End User may not assign this Agreement without the prior written consent of Atlassian (which consent will not be unreasonably withheld), provided that the assignee agrees to be bound by the terms and conditions contained in this Agreement. Atlassian may assign its rights and obligations under this Agreement in whole or in part without consent of End User. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
15. Governing Law and Arbitration
15.1 Applicable Law; Venue. This Agreement is governed by the laws of California (with regard to conflict of law principles), and, subject to Section 15.2, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of San Francisco, California.
15.2 Arbitration. Except in circumstances where a party seeks urgent injunctive relief, before commencing any court proceedings, if any disputes arise under this Agreement the parties will negotiate in good faith to resolve the dispute and if the dispute has not been resolved within sixty (60) calendar days by the relevant parties using their best efforts to resolve the dispute, the dispute will be referred to arbitration and determined under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules with any hearings to be held at either the International Commercial Arbitration Center in Sydney (Australia), Amsterdam (Holland) or San Francisco, CA (USA), as mutually agreed by the parties.
15.3 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
16. DMCA Notices
If End User believes that any content on Atlassian's Hosted Services or site violates its copyright, it should notify Atlassian's copyright agent in writing. The contact information for Atlassian's copyright agent is at the bottom of this section. Atlassian cannot take action unless End User gives us all the required information.
In order for Atlassian to take action, End User must do the following in its notice:
(i) provide End User's physical or electronic signature;
(ii) identify the copyrighted work that End User believe is being infringed;
(iii) identify the item that End User thinks is infringing and include sufficient information about where the material is located (including which website) so that Atlassian can find it;
(iv) provide Atlassian with a way to contact End User (such as address, telephone number, or email);
(v) provide a statement that End User believes in good faith that the item identified as infringing is not authorized by the copyright owner, its agent, or the law to be used by Atlassian; and
(vi) provide a statement that the information End User provides in its notice is accurate, and that (under penalty of perjury), End User is authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for Atlassian's copyright agent:
Atlassian Pty Ltd
Level 6, 341 George Street
Sydney, NSW 2000, Australia
17. Government End Users
The Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
This Agreement is the entire agreement between End User and Atlassian relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended except as described on the first page of this Agreement or otherwise with the written agreement of Atlassian (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, "including" (and its variants) means "including without limitation" (and its variants). If either party to this Agreement breaches any provision of this Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Agreement. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
Should you have any questions concerning this Agreement, or if you desire to contact Atlassian for any reason, please contact us.
2 Types of Atlassian Products. This Agreement governs (a) Atlassian’s commercially available downloadable software products (currently designated as "Server" or "Data Center" deployments) (“Software”), (b) Atlassian’s hosted or cloud-based solutions (currently designated as "Cloud" deployments) (“Hosted Services”), and (c) any related support or maintenance services provided by Atlassian. Software and Hosted Services, together with related Documentation, are referred to as “Products”. The Products and their permitted use are further described in Atlassian’s standard documentation (“Documentation”). Section 6 (Software Terms) applies specifically to Software, and Section 7 (Hosted Services Terms) applies specifically to Hosted Services, but unless otherwise specified, other provisions of this Agreement apply to all Products.
3 Account Registration. You may need to register for an Atlassian account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
4.1 Directly with Atlassian. Atlassian’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
4.2 Reseller Orders. This Agreement applies whether you purchase our Products directly from Atlassian or through Atlassian “Experts” or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Atlassian’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
5 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Products as Authorized Users, subject to the terms of our Customer Use Addendum. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
6 Software Terms.
6.1 Your License Rights. Subject to the terms and conditions of this Agreement, Atlassian grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order. The Software requires a license key in order to operate, which will be delivered as described in Section 10.2 (Delivery).
6.2 Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). We also make available “developer” licenses free of charge for certain of our Software offerings to allow you to deploy non-production instances, such as for staging or QA purposes. Details for how to request non-production licenses are available on our website.
6.3 Your Modifications. Subject to the terms and conditions of this Agreement (including without limitation Section 2 (Combining the Products with Open Source Software) of Third Party Code in Atlassian Products): (1) for any elements of the Software provided by Atlassian in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) you may also modify the Documentation to reflect your permitted modifications of the Software source code or the particular use of the Products within your organization. Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, Atlassian has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 6.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Atlassian at your expense.
6.4 Attribution. In any use of the Software, you must include the following attribution to Atlassian on all user interfaces in the following format: “Powered by Atlassian,” which must in every case include a hyperlink to http://www.atlassian.com, and which must be in the same format as delivered in the Software.
6.5 Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software. See Third Party Code in Atlassian Products for additional provisions regarding our use of third party code.
7 Hosted Services Terms.
7.1 Access to Hosted Services. Subject to the terms and conditions of this Agreement, Atlassian grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If Atlassian offers client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
7.2 Subscription Terms and Renewals. Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at my.atlassian.com. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
7.3 Credentials. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Atlassian of any unauthorized use of which you become aware.
7.4 Your Data. “Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Atlassian. Subject to the terms of this Agreement, you hereby grant to Atlassian a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Atlassian may also access your account or instance in order to respond to your support requests.
7.5 Security. Atlassian implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
7.6 Storage Limits. There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. Atlassian reserves the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.
7.7 Responsibility for Your Data.
7.7.1 General. You must ensure that your use of Hosted Services and all Your Data is at all times compliant with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to Atlassian and to grant the rights granted to Atlassian in this Agreement and (ii) Your Data and its transfer to and use by Atlassian as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Atlassian assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
7.7.2 Sensitive Data. You will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your Atlassian account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Atlassian is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Atlassian has no liability under this Agreement for Sensitive Data.
7.7.3 Indemnity for Your Data. You will defend, indemnify and hold harmless Atlassian from and against any loss, cost, liability or damage, including attorneys’ fees, for which Atlassian becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Atlassian at your expense.
7.8 Removals and Suspension. Atlassian has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
7.9 Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
7.10 Service-Specific Terms. Some of our Hosted Services may be subject to additional terms specific to that service as set forth in our Service-Specific Terms.
8 Support and Maintenance. Atlassian will provide the support and maintenance services for the Products described in the Atlassian Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms of the Atlassian Support Policy and will be provided at the support level and during the support term specified in your Order. The Atlassian Support Policy may be modified by Atlassian from time to time to reflect process improvements or changing practices. Support and Maintenance for Software includes access to New Releases, if and when available. You may use any New Releases that we provide to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
9 TAM and Training Services. We will provide Technical Account Manager (TAM) and training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). Atlassian shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse Atlassian for reasonable travel and lodging expenses as incurred. TAM services are subject to the terms of the Atlassian Professional Services Agreement.
10 Returns and Financial Terms.
10.1 Return Policy. As part of our commitment to customer satisfaction, it is our customary business practice to allow customers to return a Product within 30 days of payment for any reason or no reason and to receive a refund of the amount paid for the returned Product. In the context of Software, a return means that we will disable the license key that allowed the Software to operate. In the context of Hosted Services, a return means that we will disable access to the Hosted Service. We will not accept returns after the 30-day return period. You understand that Atlassian may change this practice in the future in accordance with Section 26 (Changes to this Agreement).
10.2 Delivery. We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that Atlassian has no further delivery obligation with respect to the Software after delivery of the license keys.
10.3 Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 10.1 (Return Policy) and Section 20 (IP Indemnification by Atlassian), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term or Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
10.4 Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Atlassian, you must pay to Atlassian the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Atlassian any such exemption information, and Atlassian will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
11 No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 11 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Atlassian’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
12 Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
13 Your Development of Add-Ons.
13.1 License to Developer Guides. From time to time, Atlassian may publish SDK’s or API’s and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). You may distribute your Add-Ons to third parties, but only for those Products permitted by Atlassian, and only in accordance with the Developer Guides.
13.2 Conditions to Development of Add-Ons. Notwithstanding anything in this Agreement to the contrary, Atlassian has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make about your Add-Ons) or your breach of this Section.
14 License Certifications and Audits. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Products. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Atlassian at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
15 Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Atlassian and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Atlassian, including without limitation as they may incorporate Feedback (“Atlassian Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Atlassian, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Atlassian may in connection with any of its products 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 Atlassian's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
16 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Atlassian Technology and any performance information relating to the Products shall be deemed Confidential Information of Atlassian without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
17 Term and Termination. This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Atlassian, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Atlassian Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.7.3 (Indemnity for Your Data), 10.3 (Payment), 10.4 (Taxes), 11 (No-Charge Products) (disclaimers and use restrictions only), 12 (Restrictions), 13.2 (Conditions to Development of Add-Ons), 14 (License Certifications and Audits), 15 (Ownership and Feedback), 16 (Confidentiality), 17 (Term and Termination), 18.2 (Warranty Disclaimer), 19 (Limitation of Liability), 21 (Third Party Vendor Products), 24 (Dispute Resolution), 25 (Export Restrictions), and 27 (General Provisions).
18 Warranty and Disclaimer.
18.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
18.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND ATLASSIAN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. 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. ATLASSIAN 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 ATLASSIAN. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER ATLASSIAN NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19 Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 19 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 12 (RESTRICTIONS) OR SECTION 2 (COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE) OF THIRD PARTY CODE IN ATLASSIAN PRODUCTS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 19 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
20 IP Indemnification by Atlassian. We will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Atlassian (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Atlassian’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Atlassian with respect to your license to Software or subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Atlassian, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Atlassian product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 7.7.3 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without Atlassian’s prior written consent. THIS SECTION 20 (IP INDEMNIFICATION BY ATLASSIAN) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY ATLASSIAN UNDER THIS AGREEMENT.
21 Third Party Vendor Products. Atlassian or third parties may from time to time make available to you (e.g., through the Atlassian Marketplace) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Atlassian does not warrant or support non-Atlassian products or services, whether or not they are designated by Atlassian as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Atlassian products, you acknowledge that Atlassian may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Atlassian products. Atlassian shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party add-on vendors.
22 Publicity Rights. We may identify you as an Atlassian customer in our promotional materials. You may request that we stop doing so by submitting an email to firstname.lastname@example.org at any time. Please note that it may take us up to 30 days to process your request.
24 Dispute Resolution
24.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the parties: Sydney (Australia), Amsterdam (Netherlands) or San Francisco, CA (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in San Francisco, CA. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
24.2 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 24.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Atlassian may bring a claim for equitable relief in any court with proper jurisdiction.
24.3 Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 24.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
24.4 Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
25 Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
26 Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Atlassian account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
27 General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Atlassian Pty Ltd, c/o Atlassian, Inc., 1098 Harrison Street, San Francisco, CA, USA 94103, Attn: General Counsel. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and Atlassian relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.