ATLASSIAN MARKETPLACE VENDOR AGREEMENT
This Atlassian Marketplace Vendor Agreement (this "Agreement") is between Atlassian Pty Ltd (ABN 53 102 443 916) ("Atlassian") and you (if registering as an individual) or the entity you represent (if registering as a business) ("Vendor" or "you") as a vendor in the Atlassian Marketplace. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. Under this Agreement, you authorize Atlassian, among other things, to promote, resell, test and distribute Marketplace Add-ons (as defined below).
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the Atlassian Marketplace.
1. Introduction to the Atlassian Marketplace
The Atlassian Marketplace is a forum for connecting vendors who make Add-ons for Atlassian applications with potential customers. Add-ons can be written using the Atlassian Connect framework (https://developer.atlassian.com/display/AC/Atlassian+Connect) or other Atlassian SDKs. Add-ons written using Atlassian Connect can be designed either for use with Atlassian's downloadable products or with Atlassian's hosted services (such as Atlassian's Cloud offerings). As a vendor, you may charge a fee for your Add-ons and designate whether customers may order your Add-ons through Atlassian's ordering and license management system (in which case revenue sharing will apply) or directly from you (in which case there will be no revenue sharing with Atlassian). You may also offer your Add-ons free of charge under certain circumstances.
2. Key Definitions
2.1. "Atlassian Marketplace" or "Marketplace" means any location at which Atlassian makes available or lists Marketplace Add-ons, which may include http://marketplace.atlassian.com or any other webpage, application, mobile interface, service or user interface that allows for the discovery, download or purchase of Add-ons.
2.2. "Marketplace Add-ons" or "Add-ons" means the add-ons, extensions, plugins or other software that you deliver to Atlassian or make available through the Marketplace. "Add-ons" also include any New Versions.
2.3. "Marketplace Guidelines" means the terms, rules and policies that Atlassian makes available at https://developer.atlassian.com/market setting forth requirements (as may be modified by Atlassian from time to time) for including your Marketplace Add-ons in the Atlassian Marketplace.
2.4. "New Versions" means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Add-ons.
3. Using the Marketplace to Publish Your Add-ons
3.1. Types of Add-ons. Currently, the Atlassian Marketplace allows you to offer the following types of listings for Marketplace Add-ons. You designate your listing type using your vendor account on the Atlassian Marketplace (subject to approval by Atlassian). The Add-ons are described further below:
3.1.1. "Server Add-ons" are Add-ons that are downloadable by end users from the Atlassian Marketplace and designed to run in end user instances of Atlassian products behind the end user's firewall.
3.1.2. "Free Add-ons" are Add-ons that you provide free of charge, which may be downloaded from the Atlassian Marketplace or from your external website, in all cases under circumstances specified by Atlassian.
3.1.3. "Cloud Add-ons" are Add-ons hosted by Vendor or Vendor's agent (unless otherwise agreed in writing by Atlassian) that are designed to be used with Atlassian's hosted services, such as Atlassian's Cloud offerings.
3.1.4. "Paid-via-Atlassian Add-ons" are Add-ons for which end users pay all fees to Atlassian (with Vendor receiving a Revenue Share as described in this Agreement). Paid-via-Atlassian Add-ons may be either Server Add-ons or Cloud Add-ons. You must use Atlassian's licensing mechanisms (see below regarding the Migration API) for all Paid-via-Atlassian Add-ons. For Paid-via-Atlassian Add-ons that are Server Add-ons, end users will receive license keys from Atlassian.
3.1.5. "Paid-via-Vendor Add-ons" are products for which users pay all fees to Vendor (not Atlassian). Paid-via-Vendor Add-ons may only be Server Add-ons. They may not be Cloud Add-ons or any Add-ons you develop using Atlassian Connect. For these Server Paid-via-Vendor Add-ons, you provide your own license keys directly to the end user. Depending on the settings you select, end users will either download these Add-ons directly from you or will be able to download the Add-ons from Atlassian before navigating to your website or otherwise contacting you directly to purchase license keys.
3.1.6. A "Similar Service" is any online distribution service or channel that makes Paid-via-Atlassian Add-ons available for sale, use or download to end users and/or channel partners, and includes any website or other distribution method operated by you.
4. Financial Terms
This Section 4 (Financial Terms) shall only apply to Paid-via-Atlassian Add-ons.
4.1. List Price. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing for initial sales, licenses or subscriptions to your Paid-via-Atlassian Add-ons (the "List Prices"). Atlassian will determine the pricing for renewals, upgrades that add more licenses/users, New Versions and other support and maintenance, and academic and community licenses acquired through the Atlassian Marketplace ("Follow-on Sales"), all in accordance with its standard formulas and policies. Subject to Section 4.6 (Sales through Atlassian Resellers and Your Channel Partners), you agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable Paid-via-Atlassian Add-on (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such Paid-via-Atlassian Add-on available for sale through any Similar Service. You will update the List Price for each Paid-via-Atlassian Add-on as necessary to ensure that it meets the requirements of this Section 4.1.
4.2. Revenue Share. For each Sale, Atlassian will pay you an amount ("Revenue Share") equal to seventy five percent (75%) of the amount received by Atlassian from the Sale. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Atlassian Add-on (or related content or services) through the Atlassian Marketplace, including any Follow-on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Atlassian has received final payment from or on behalf of an end user. If an Add-on is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. For purposes of clarity, in the event Atlassian refunds the applicable Sale amount (or a portion thereof) to an end user or an Atlassian Solution Partner (which you agree that Atlassian can do entirely in its own discretion), you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded.
4.3. Payment by Atlassian. Subject to the terms of this Agreement (including Section 4.5 for GST Registered Vendors), approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, Atlassian will make available to you a report detailing Sales of Paid-via-Atlassian Add-ons and corresponding Revenue Share along with payment of the Revenue Share due in connection with such report. All payments will be made in US dollars ("$"). You agree to provide Atlassian with information on a valid bank account in your name, and Atlassian will make payments to that account via Electronic Funds Transfer ("EFT"). Atlassian is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least $500.00. If Atlassian pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), Atlassian may offset the amount of the Revenue Share that Atlassian previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to Atlassian. Atlassian may also withhold and offset sums you owe to Atlassian against amounts that are payable to you. You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.3 are solely your responsibility. When this Agreement terminates, Atlassian may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure Atlassian's ability to offset any end user refunds or make any other offsets to which Atlassian is entitled.
4.3.1. Use of Certain Information. Atlassian shall only use your banking and payment information for purposes related to this Section 4 (Payment Terms). Atlassian shall not disclose your sales and related financial data to third parties. The foregoing sentence notwithstanding, Atlassian may use or disclose aggregated sales and other financial data related to the Atlassian Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
4.4. Taxes. Except as described in this Agreement (including Section 4.5 for GST Registered Vendors), Atlassian is responsible for collecting and remitting any taxes imposed on sales of Paid-via-Atlassian Add-ons to end users. You are responsible for any income or other taxes due and payable resulting from Atlassian's payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. Atlassian maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from Atlassian, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
4.5. Vendors Required to Register Under Australian GST Rules. Notwithstanding any conflicting terms above in this Section 4, if you are a Vendor ("GST Registered Vendors") that is registered or required to be registered for Australian Goods and Services Tax ("GST"), prior to Atlassian's payment to you, you acknowledge that you are required to issue a tax invoice to Atlassian to comply with Australian GST rules. However, in the interests of administrative simplicity, you and Atlassian agree that Atlassian will issue recipient created tax invoices ("RCTIs") for taxable supplies made under this Agreement (together with the report and payment described in Section 4.2) and that you will not issue tax invoices for those supplies. For the purposes of issuing RCTIs, both parties acknowledge that they are GST Registered Vendors and will notify each other if that ceases to be the case. Notwithstanding this Section 4.5 with respect to RCTIs, you acknowledge that you remain responsible for filing a GST return and passing any GST received (including GST received from Atlassian in connection with the RCTIs) onto the Australian Tax Office in accordance with your individual circumstances.
4.6. Sales through Atlassian Solution Partners and Your Channel Partners. Atlassian has a network of partners who are authorized to resell licenses or subscriptions to Atlassian products (each, an "Atlassian Solution Partner" as described here). You hereby acknowledge that, unless you opt out from allowing Atlassian Solution Partners to resell your Paid-via-Atlassian Add-ons, Atlassian Solution Partners will be entitled to purchase your Paid-via-Atlassian Add-on at a discount to the List Price for resale or provision to end users, with the amount of such discount determined at Atlassian's sole discretion, not to exceed twenty percent (20%) of the List Price. If you make your Paid-via-Atlassian Add-ons available to third party channel partners on a Similar Service at a discount to List Price, then continuing to provide such discount to such third party resellers will not violate Section 4.1 (List Price) above, provided such discount does not exceed the discount provided to Atlassian Solution Partners through the Atlassian Marketplace. If you opt out from allowing Atlassian Solution Partners to resell your Paid-via-Atlassian Add-ons, then you may not offer such products at a discount to List Price to third party channel partners on a Similar Service.
5. Your Content; License to Atlassian; End User Licensing
5.1. Delivery of Your Content. You will deliver Marketplace Add-ons to Atlassian on or prior to the initial availability date you designate for the Marketplace Add-on (the "Initial Availability Date"). Together with delivery of each Marketplace Add-on, you will also provide the following information and materials: (a) Marketplace Add-on title, Initial Availability Date, category, Vendor name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Marketplace Add-ons that Atlassian requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Marketplace Add-on that you wish to appear in connection with your Add-on; (c) any Vendor EULA (defined below); and (d) in the case of Cloud Add-ons, an XML descriptor of the Add-on ("XML Code") ((a), (b), (c) and (d) collectively being the "Product Information"). Together, the Marketplace Add-ons and Product Information are "Content".
5.1.1. Exception for Cloud Add-ons. Notwithstanding the foregoing, if Atlassian is not hosting a Cloud Add-on, then you are not required to deliver the Add-on itself to Atlassian. However, you must still deliver the XML Code and the rest of the Product Information to Atlassian pursuant to the preceding paragraph.
5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide Atlassian with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including Atlassian's Marketplace Guidelines (which are hereby incorporated into this Agreement). The Marketplace Guidelines may include (or reference) terms and conditions for creation or operation of Add-ons, such as policies for development of Add-ons for particular Atlassian products, Atlassian SDK usage terms, API call limitations for Cloud Add-ons or other integration requirements. You must comply with all such terms. Nonetheless, the express terms and conditions of this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or such included (or referenced) terms, but only with respect to the subject matter of this Agreement. In your activities under this Agreement, you also agree to comply with the Atlassian Acceptable Use Policy (as may be modified from time to time by Atlassian) (the "AUP").
5.4. License Grant to Atlassian. You hereby grant Atlassian, during the Term (and thereafter in accordance with Section 10 (Term and Termination)), the nonexclusive, royalty‐free (subject to payment of any applicable Revenue Share), worldwide right and license:
5.4.1. to resell, distribute or make available (including via download), as applicable, the Marketplace Add-ons through the Atlassian Marketplace to end users (either directly or, unless you opt out, through Atlassian Solution Partners) by all means of electronic distribution available now or in the future, except that this Section 5.4.1 shall not apply to (i) Paid-via-Vendor Add-ons that you choose to make available for download directly from your website instead of from Atlassian and (ii) Free Add-ons available for download only from your own website;
5.4.2. to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the Atlassian Marketplace and (ii) listings for your Add-ons (and for Cloud Add-ons, these rights also apply to exploitation of the XML Code in connection with Atlassian making available the relevant Atlassian Cloud product); and
5.4.3. otherwise to use, store, copy and distribute your Content for testing and evaluation purposes; for Atlassian's use internally, in object code format (which Atlassian agrees not to decompile or reverse engineer), within the scope for which the Add-On's use is reasonably intended ("Internal Use License"); for purposes of exercising Atlassian's rights and fulfilling Atlassian's obligations hereunder; and for purposes of enforcing this Agreement and the Marketplace Guidelines. Vendors may opt out of the Internal Use License by giving Atlassian notice thereof to firstname.lastname@example.org.
5.5. License Clarifications. The licenses granted to Atlassian in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, consistent with Section 10 (Term and Termination), after the Term to retain one or more electronic copies of each Marketplace Add-on and its associated Product Information and allow and downloads and re‐downloads of and access to Marketplace Add-ons by end users (either directly or through Atlassian Solution Partners), and (iii) are granted under all applicable intellectual property rights (including patent rights).
6. Delivery Commitments and End User Responsibilities
6.1. Delivery Commitment. You will deliver electronically to Atlassian (and continue to make available during the Term) all versions of Marketplace Add-ons (i) that have been designed to integrate or interface with one or more Atlassian products through an internal programming interface ("APIs") made available by Atlassian for this purpose, (ii) for which you have the rights required under this Agreement, and (iii) that are the same versions and editions (except as otherwise provided in this Agreement) that you or your affiliates make available directly or indirectly through any Similar Service. You will deliver any New Versions to the Marketplace Add-ons, together with any related Product Information, as soon as they are available. For Paid-via-Atlassian listings, the Initial Delivery Date and the date of delivery of any New Versions must be no later than the first date you permit the corresponding version of the Marketplace Add-on to be listed for sale on any Similar Service. As mentioned above, if Atlassian is not hosting a Cloud Add-on, then you are not required to deliver the Add-on itself to Atlassian.
6.1.1. You must also deliver all Product Information to Atlassian and make the Cloud Add-on (including any New Versions) available to Atlassian and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-ons.
6.2. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end user customers for your Marketplace Add-ons during normal business hours. You will provide to Atlassian a current email address to which Atlassian may direct inquiries from users regarding your Marketplace Add-ons. You are solely responsible for providing all support for your Marketplace Add-ons, and for providing to users of your Marketplace Add-ons all information necessary for their use of your Marketplace Add-ons. At a minimum you agree to respond within 24 hours to any support request that Atlassian identifies as critical, and in all other cases within five business days of request from an end user or Atlassian. Notwithstanding the foregoing, you are not obligated to provide support for Free Add-ons.
6.3. Migration of Vendor Customers into Atlassian Marketplace. Vendor may contact Atlassian at email@example.com in the event it desires to migrate its existing end users into the Atlassian Marketplace to manage future license management and renewals. If authorized by Atlassian, Vendor will be provided access to its migration API ("Migration API") pursuant to which Vendor will enter the license information and details necessary for Vendor to utilize the Atlassian Marketplace licensing mechanism for applicable customers. In connection with its use of the Migration API, Vendor agrees to only request license keys for its existing customers that began their respective license or maintenance period more than thirty-one (31) days prior to the date such license key is requested.
7 Reservations of Rights
Subject to the rights granted in this Agreement and Atlassian's ownership of certain software, APIs, documentation and related materials (the "Atlassian Materials") to which Atlassian provides you access, as between you and us, you retain all right, title and interest in and to Content that you deliver to us. Subject to your rights in such Content, Atlassian retains all right, title and interest in and to the Atlassian Marketplace, Atlassian Materials, Atlassian Cloud applications and other Atlassian products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8. Additional Atlassian Marketplace Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any binary code used in connection with the Atlassian Marketplace, including any Atlassian Materials that Atlassian provides you. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of Atlassian or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to Atlassian, the Atlassian Marketplace, or Atlassian's product or services, or (3) by Atlassian or on behalf of Atlassian. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue Atlassian or the Marketplace.
8.2. Review of Marketplace Add-ons by You. The Atlassian Marketplace allows you to post reviews of Marketplace Add-ons. Any review by you of a Marketplace Add-on shall be made in good faith after reasonable evaluation of the full Marketplace Add-on. If you post a review of your Marketplace Add-on, you shall disclose your identity and the fact that the Marketplace Add-on being reviewed is your Marketplace Add-on. If you post a review of a competitor's Marketplace Add-on, you shall disclose your identity and the fact that you publish a competitive Marketplace Add-on. All reviews must comply with Atlassian's AUP, and Atlassian (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.
8.3. Atlassian Marketplace Operations. Atlassian maintains sole discretion to determine all features and operations of the Atlassian Marketplace. You acknowledge that Atlassian has no obligation to promote, distribute, list or offer for Sale any Marketplace Add-on, or to continue to do so. With respect to Paid-via-Atlassian Add-ons only, Atlassian is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the Atlassian Marketplace will be processed by Atlassian's payment systems and will be subject to the Revenue Share terms above. Atlassian will have sole ownership and control of all Sales and other data Atlassian obtains from end users in connection with the Atlassian Marketplace, but will make available certain End User Data to you, subject to Section 8.4.
8.4. End User Data and Privacy‐Related Obligations. In addition to sales data related to your Paid-via-Atlassian Add-ons, Atlassian will provide you with access to certain information provided to Atlassian by end users of your (a) Paid-via-Atlassian Add-ons and (b) Free Add-ons available through the Atlassian Marketplace, including end user name, company name (if any), physical or email addresses, and phone numbers ("Atlassian-Collected End User Data"). Based on the activities under this Agreement, subject to the provisions of this Section 8.4, you may also collect other information or data from end users, some of which may include personally identifiable information ("Vendor-Collected End User Data"). Any end user data or information, whether Atlassian-Collected End User Data or Vendor-Collected End User Data, is, collectively "End User Data". For all End User Data you will (i) use and authorize others to access and use the End User Data only for the purposes of providing and improving the functionality and user experience of your Marketplace Add-on(s), marketing your Marketplace Add-on to end users or such other purposes expressly permitted by the end user (in each case, in compliance with all Laws), and not modify any End User Data in a manner that adversely affects it integrity, and (ii) treat, store, transmit, disclose and use the information only in accordance with applicable privacy notices and laws, rules, regulations, orders, and other requirements of governmental agencies (together, "Laws"). Without limiting the foregoing and with respect to Vendor-Collected End User Data, you shall (x) provide legally adequate privacy notices to each end user and obtain all necessary consents under Law and (y) notify end users that Atlassian is not responsible for the privacy, security or integrity of Vendor-Collected End User Data. You shall also maintain and handle all of the End User Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable Laws. For the sake of clarity, Atlassian shall not be liable for or have any responsibility in connection with Vendor-Collected End User Data.
8.5. Export. Atlassian is relying on your accurate determination of your Marketplace Add-on's export status and your compliance with all export laws. You hereby represent, warrant and certify that, if applicable, (1) your Marketplace Add-ons are authorized for export from the United States to each country to which you permit them to be distributed or made available through the Atlassian Marketplace, in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774; and (2) either (i) the Marketplace Add-ons do not contain, use or support any data encryption or cryptographic functions ("Encryption Technology") or (ii) you have qualified each Marketplace Add-on containing, using or supporting Encryption Technology for export as a "mass market encryption item" in accordance with 15 C.F.R Part 742.15(b)(2) and will provide Atlassian with a copy of the applicable mass market export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Security. If the US export control provisions above are not applicable to you, or in any event if non-US export control laws or regulations are applicable to you, you will notify Atlassian of any non-US export control laws or regulations relevant to your Marketplace Add-ons, and you represent, warrant and certify to Atlassian that you will comply with all applicable export laws and regulations.
8.6. Feedback. "Feedback" means any feedback, comments, suggestions, ideas, description of processes or other information that you may provide to Atlassian from time to time about or in connection with Atlassian Marketplace, including any ideas, concepts, know-how or techniques contained therein. You hereby grant 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 Atlassian Marketplace or any Atlassian products, applications or services. You agree that Atlassian may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise.
8.7. Aggregated Information. In addition to Atlassian's other rights, Atlassian may collect aggregated information regarding the Atlassian Marketplace and Marketplace Add-ons (excluding any personally identifiable information), including through the use of third party analytics tools such as Google Analytics ("Aggregated Information") and may exploit and use the Aggregated Information for any purpose without restriction.
9. Atlassian Control of Marketplace
Atlassian may determine in its sole discretion to make available or list any Marketplace Add-on through the Atlassian Marketplace. Atlassian may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace Add-on in the Atlassian Marketplace does not relieve you of responsibility to ensure the Marketplace Add-on complies with this Agreement or to perform other obligations under this Agreement.
10. Term and Termination
10.1. Term. The term of this Agreement (the "Term") will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or Atlassian terminates it.
10.2. Termination Rights. Either Atlassian or you are entitled to terminate this Agreement and access to your account (and/or this Agreement with respect to any particular Add-on(s)) with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party's intellectual property rights.
10.2.1. Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by Atlassian at the time), Atlassian may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Add-ons) under the following circumstances: (1) Atlassian ceases to operate the Marketplace, (2) you violate Atlassian's AUP, or (3) Atlassian determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to Atlassian or any third party or otherwise harm the Marketplace or other Marketplace vendors or users.
10.3. Transition. Following any termination or expiration of this Agreement or withdrawal of your Add-on from the Marketplace, in Atlassian's discretion, (a) Atlassian may continue to fulfill any end user orders for Add-ons pending as of the date the termination takes effect, and (b) Atlassian will use reasonable efforts to take down the listing for your Add-on within forty-five (45) days after termination (the "Transition Period"), but in any event Atlassian may continue to make available Paid-via-Atlassian Add-ons for further access, downloads or re‐downloads by existing end users of those Add-ons for the duration of the end user's license or subscription to the Add-on.
10.3.1. If you are a vendor of Paid-via-Atlassian Add-ons, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible doing the following, consistent with Atlassian's guidance and instructions:
10.3.1.1. for Cloud Add-ons, making the Add-on (including any New Versions) available to Atlassian and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-ons,
10.3.1.2. taking all actions necessary to move existing end users to your non-Atlassian license mechanism, including, as applicable: (a) providing an equivalent product that integrates to Atlassian applications without the use of Atlassian Connect; (b) contacting customers and providing access, installation and migration instructions, and equivalent license terms and keys; and/or (c) providing customers with data migration tools and migration assistance,
10.3.1.3. arranging for ongoing support and maintenance (including New Versions) for your Add-ons for all end users who have purchased such rights, and
10.3.1.4. communicating such matters accurately and in a positive and professional manner to end users. If specified by Atlassian, the Transition Period may commence upon a notice of termination rather than the effective date of termination. For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated Add-on to Atlassian for distribution under this Agreement thereafter, but Atlassian's post-termination rights in this paragraph will apply for the latest version of the Add-on you provided to Atlassian hereunder (and any prior version).
10.4. Effect of Termination; Survival. Unless otherwise specified by Atlassian: (a) all EULAs and associated end user licenses and subscriptions to Add-ons will survive termination or expiration of this Agreement in accordance with their terms and (b) Vendor will continue to host and operate any Cloud Add-ons for use by end users at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Add-Ons. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional Atlassian Marketplace Terms), and 10 (Term and Termination) through 19 (General).
11. Representations and Warranties
You represent, warrant and covenant that:
11.1. You are at least 18 years of age and are able to form a legally binding contract. If Vendor is a business or other legal entity and not an individual, then the individual entering into this Agreement on Vendor's behalf represents that he or she has all necessary legal authority to bind Vendor to this Agreement;
11.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
11.3. Before providing Atlassian any Content or listing Content in the Atlassian Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
11.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
11.5. You will immediately notify Atlassian if you unexpectedly lose any IP rights related to your Marketplace Add-ons or become aware of a third party claim related to these rights;
11.6. Your Content will not contain any viruses, spyware, "Trojan horses," or other "malware" or harmful code, and will not cause injury to any person or damage to any property; and
11.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of a Vendor EULA) based on your use of third party "open source" software or other third party intellectual property in any Add-on. You will also promptly make available to Atlassian, end users and any other third party that is entitled to it, the source code corresponding to any Add-on or portion thereof if and in the manner required by applicable third party terms and conditions. Atlassian's exploitation (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
12.1. By Atlassian. Subject to the terms and conditions of this Agreement: (1) Atlassian shall defend a Vendor of a Paid-via-Atlassian Add-on from claims by third parties alleging that the Atlassian Marketplace or API's used in connection with such Add-on infringes such third party's U.S. or Australian copyright or trademark and (2) Atlassian shall pay damages finally awarded by a court of competent jurisdiction against such Vendor for such a claim or, if Atlassian settles the claim, the settlement amounts. Atlassian's obligations in this Section 12.1 apply only to the Atlassian Marketplace and APIs themselves and not to any Marketplace Add-ons, other Atlassian products or services, or other third party content hosted on or used with the Atlassian Marketplace and APIs, and in any case Atlassian's obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the Atlassian Marketplace or APIs. As a condition to Atlassian's obligations under this Section 12.1, you must provide Atlassian (i) prompt written notice of the claim (and in any event notice in sufficient time for Atlassian to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 12.1 sets forth Atlassian's sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
12.2. By You. You will indemnify, defend and hold Atlassian and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of any claim relating to any Content or the use of Content (including any claims made by or arising from end users), or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a "Claim," and collectively, the "Claims"). You will not consent to the entry of a judgment or settle a Claim without Atlassian's prior written consent, which may not be unreasonably withheld. If you do not promptly assume and conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then Atlassian may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 12.2 are independent of your other obligations under the Agreement.
13. Atlassian Confidential Information
13.1. Definition. All information disclosed by Atlassian that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is "Confidential Information". Confidential Information includes non-public aspects of the Atlassian Marketplace and Atlassian's applications; non-public aspects of third-party applications listed in the Atlassian Marketplace to which you obtain access as a result of the relationship between you and Atlassian under this Agreement; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and Atlassian under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to your before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Atlassian or anyone else.
13.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide Atlassian with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Atlassian's cost, if Atlassian wishes to contest the disclosure.
13.3. Injunctive Relief. In event of actual or threatened breach of this Section 13, Atlassian shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
14. Information You Provide Is Not Confidential
14.1. You understand and agree that Atlassian develops its own products and services and works with many other vendors and developers, and either Atlassian or these third parties could in the future develop (or already have developed) products similar to yours.
14.2. You should not provide to Atlassian any information that you consider confidential and you agree that Atlassian is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement. You expressly agree that neither this Agreement nor your participation in the Marketplace limits Atlassian's right to develop or have developed for it products, concepts, systems or techniques that are similar to or compete with any Marketplace Add-on or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to Atlassian. For clarity, however, this paragraph, in itself, does not grant Atlassian any license under your intellectual property rights.
15. Atlassian Trademarks/Publicity
You will: (i) only use the Atlassian Marks in the form and manner as set forth at http://www.atlassian.com/company/trademark and only in connection with the sale of your Marketplace Add-ons in the Atlassian Marketplace; (ii) not register any domain names that contain any terms that are the same or similar to any Atlassian Marks; and (iii) upon expiration or termination of this Agreement for any reason, immediately cease all use of the Atlassian Marks, unless you are otherwise authorized to continue using the Atlassian Marks pursuant to a separate written agreement with Atlassian. "Atlassian Marks" means the trademarks, trade names, service marks and logos owned or otherwise used by Atlassian. Nothing contained herein shall grant you any ownership right in the Atlassian Marks.
16. Disclaimers and Limitations of Liability
16.1. Disclaimer of Warranties. THE ATLASSIAN MARKETPLACE AND ANY ATLASSIAN MATERIALS ARE PROVIDED "AS IS" AND ATLASSIAN EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
16.2. Limitations of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 ABOVE: (A) NEITHER YOU NOR ATLASSIAN SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR ATLASSIAN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ATLASSIAN MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED ATLASSIAN'S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, "ATLASSIAN'S MARGIN" MEANS THE AMOUNTS RECEIVED BY ATLASSIAN FROM SALES OF YOUR ADD-ONS, MINUS THE REVENUE SHARE ATLASSIAN HAS PAID YOU.
16.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
17. Agreement Changes
This Agreement relates to the broader Atlassian Marketplace, which will change over time. Atlassian reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective thirty (30) days after notice. Atlassian will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If you do not agree to any of the proposed changes, you may terminate this Agreement prior to the date on which the changes were to take effect by (i) providing written notice to Atlassian and (ii) terminating this Agreement and withdrawing all of your Add-ons from the Marketplace. If you so terminate the Agreement, the proposed changes will have no effect on you. However, if you do not so terminate then your continued participation in the Atlassian Marketplace after changes to this Agreement take effect will constitute your acceptance of the changes.
18. Dispute Resolution; Governing Law
18.1. 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 a 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 (USA). All negotiations and arbitration proceedings pursuant to this Section 18.1 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.
18.2. 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 18.1 (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.
18.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 18, 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.
This Agreement may not be amended except in writing signed by both parties or as provided in Section 17 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word "including" will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors. Each party will bear its own costs and expenses in performing this Agreement. Atlassian's failure to enforce any provision of this Agreement will not constitute a waiver of Atlassian's rights to subsequently enforce the provision. Atlassian may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Atlassian's affiliates, contractors and service providers may exercise all rights of Atlassian under this Agreement, including Atlassian's license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Atlassian's prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give Atlassian written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that Atlassian determines that such assignment is to a competitor of Atlassian, Atlassian may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by Atlassian via email, via a posting in the Marketplace Guidelines, or via a message through your my.atlassian.com account, or (ii) by you via email to firstname.lastname@example.org or to such other email or physical addresses as Atlassian may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.
Last Revised: June 1, 2017