Atlassian Reseller Agreement
Effective starting: Aug 1, 2023
This Atlassian Reseller Agreement (the “Agreement”) is entered into by and between Atlassian Pty Ltd (“Atlassian” or “we”), an Australian corporation (ABN 53 102 443916), and the applicable reseller (“Reseller” or “you”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. By placing an Order for Atlassian’s Offerings to resell to a Customer, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not place an Order to resell the Atlassian Offerings. Individually, either Reseller or Atlassian may be referred to as a “Party” and, together, Atlassian and Reseller may be referred to as the “Parties”.
12. LIMITATION OF LIABILITY
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS OR AFFILIATES) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’ AND AFFILIATES’) AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY RESELLER TO ATLASSIAN WITH RESPECT TO THE ORDER THAT IS THE SUBJECT OF THIS AGREEMENT.
12.3. Excluded Claims. “Excluded Claims” means (a) Reseller’s breach of Sections 3 (Reseller Rights and Restrictions), 4 (Conduct and Obligations), (b) amounts payable to third parties by Reseller under Section 9 (Indemnification) or (c) either Party’s breach of Section 10 (Confidential Information).
12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
13. DISPUTE RESOLUTION
13.1. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California, and both parties submit to the personal jurisdiction of those courts.
13.2. Injunctive Relief; Enforcement. Notwithstanding Section 13.1 (Governing Law; Jurisdiction and Venue), nothing in this Agreement will 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.
14. EXPORT RESTRICTIONS. Reseller agrees to comply with all relevant U.S. and foreign export and import laws in using the Offerings. Without limiting the foregoing, (a) Reseller represents and warrants that it is not, and that it will not market or resell the Offerings to any party that is, listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (b) Reseller will not (and will not permit any of its users to) access or use the Offerings in violation of any U.S. export embargo, prohibition or restriction or with any information controlled under the U.S. International Traffic in Arms Regulations.
15. CHANGES TO AGREEMENT. Atlassian may update this Agreement from time-to-time at its sole discretion by posting the updated terms to this site or a successor site. The version of this Agreement in place at the time each Order is submitted is the version that will govern such Order. Except as provided in this Section 15, all changes or amendments to this Agreement require the written agreement of you and Atlassian.
16. GENERAL PROVISIONS
16.1. Contact Information. Except as otherwise set out in this Agreement, please direct your communications concerning thise Agreement to email@example.com. Atlassian may send you notices to your email address that is on file with Atlassian, which you have provided when placing an Order, or through your Atlassian account.
16.2. Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, pandemic or natural disaster.
16.3. Assignment. Neither Party may assign or transfer this Agreement without the other Party’s prior written consent. As an exception to the foregoing, either Party may assign this Agreement in its entirety to an Affiliate, or to its successor resulting from a merger, acquisition or sale of all or substantially all of its assets or voting securities, provided that the assignee is financially and technically able to, and agrees in writing to, assume all of assignor’s obligations under this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized above will be null and void. Subject to the foregoing, this Agreement will inure to the Parties’ permitted successors and assigns.
16.4. Entire Agreement. This Agreement, constitutes the entire, complete and exclusive agreement between the Parties and supersedes all previous agreements or representations, oral or written, relating to the subject matter hereof. In the event of conflict or inconsistency between any such terms and conditions, the following order of precedence will apply: 1) the Order, 2) this Agreement and 3) any other terms or documentation attached hereto or referenced herein. Except for an Order executed by Atlassian, no purchase order or ordering documents which purports to modify or supplement this Agreement will add to or vary the terms of this Agreement.
16.5. Waivers; Severability. No failure or delay by the injured Party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will 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. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
16.6. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants), and “hereunder” refers to this Agreement in its entirety. Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
16.7. Independent Contractors. The Parties are independent contractors. This Agreement will 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 either Party the express or implied right, power or authority to create any duty or obligation of the other Party.