This End-User License Agreement ("EULA") states the terms and conditions agreed between Licensee (either an individual or, an entity), and Onit ("Licensor"), to use Onit for Jira ("Software"). This EULA applies from the date when the Licensee receives the Software from a Reseller or Onit. An amendment or addendum to this EULA may accompany the Software and any such amendment or addendum whose terms shall be considered part of and shall prevail over the EULA.
By installing, copying, downloading or otherwise using in any way the Software, or by clicking a box indicating your acceptance, you agree to be bound by the terms of this EULA as Licensee.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
The Software is licensed, not sold. Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the non-exclusive and a non-transferable right to use the Software subject to the following conditions:
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users who have access to the Software is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.
Each License granted by the Licensor under this EULA is unless otherwise specified in this EULA or agreed by Licensor in writing, a worldwide, non-exclusive and non-transferable authorization to use the Software up to its Term.
The Licensee must: (a) ensure that only an Authorized User uses the Software and only in accordance with the terms and conditions of this EULA and (b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.
The Licensee must not, whether through negligent act or omission, or without the prior written consent of the Licensor, which may be withheld at its sole discretion and conditions: (a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software; (b) directly or indirectly access or use any Embedded Software independently of the rest of the Software; (c) sell; sublicense; rent, redistribute; reproduce; transmit; circulate; disseminate; (f) commit any act or omission the likely result of which is that Licensor or any of its third-party suppliers reputation will be brought into disrepute or which could reasonably be expected to have or does have a material and adverse effect on Licensor interests; (h) copy or embed elements of the Accessible Code contained in the Software into other software.
Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be for a Cloud Product, the period of time of the Paid License subscription or renewal, or the Evaluation Period.
The Software contains some functions created to obtain data regarding the server and usage of the Software that will be sent to the Licensor, and that data will be used only for the Licensor internal purposes to improve and develop the Software capacities and performance.
The Licensee must pay all Fees by their due date notified to the Licensee and in the manner directed at the time of Purchase of the User License. Failure to pay the Fees by the due date will result in the immediate termination of the Licenses granted under this EULA.
This EULA applies to updates, add-on components, or Internet-based services components of the Software that the Licensor may provide to the Licensee unless the Licensor provides other terms along with any Supplementary Software.
The Licensor retains all rights, title, and interest in and to the Software, as well as all intellectual property rights (such as copyright, patent, and trademark) in and to the Software not expressly granted to the Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties.
The Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. The Licensee is not granted any rights to any trademarks or service marks of the Licensor.
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 that is empowered with all necessary authority to bind such party to the terms and conditions of this Agreement.
ALL PRODUCTS ARE PROVIDED “AS IS,” AND THE LICENSOR AND ITS RESELLERS 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 WITH REGARD TO THAT PRODUCTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. THE LICENSOR SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE LICENSOR. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THE LICENSOR 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.
The Licensee acknowledges that the Licensor’s Cloud Products are hosted by third-parties and that the availability of those Cloud Products is subject to the third-party’s Service Level Agreement.
The Licensee may have remedies against the Licensor imposed by law or statute that cannot be excluded by the Licensor and its third-party suppliers. To the extent the Licensee has such legal remedies against the Licensor or its third-party suppliers than to the fullest extent permitted by law, the Licensor and its third-party suppliers’ liability are limited (a) at the Licensor’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance; 1) resupply of the Maintenance; or 2) the cost of having the Maintenance supplied again; or (b) if the limitation is not applicable, then the Licensor’s maximum liability shall be equal to two times the amount actually paid by the Licensee for the Software.
If the Licensor reasonably suspects that the Software has been distributed to or obtained by any person or party without the Licensor’s prior written consent, that the Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EULA and in particular, the Licensor reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EULA. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by the Licensor within ninety (90) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing the Licensor to terminate the licenses granted under this EULA.
Without prejudice to any other rights and in addition to any other termination rights in this EULA, the Licensor may terminate with immediate effect this EULA, through a written notification sent to the Licensee, if:
The Licensee fails to comply with the terms and conditions of this EULA and does not amend that breach within fifteen (15) days from the date the Licensee receives from the Licensor the notification of said breach; or
The Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay (its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
The Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of the Licensee; or
An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Licensee (being a company); or
The holder of a qualifying floating charge over the assets of the Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or
A person becomes entitled to appoint a receiver over the assets of the Licensee or a receiver is appointed over the assets of the Licensee; or
A creditor or encumbrancer of the Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Licensee’s assets and such attachment or process is not discharged within 14 days; or
The Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Upon at least thirty (30) days’ notice, the Licensor reserves the right to terminate any Internet-based services and Software components provided to the Licensee.
The Licensor will indemnify and hold harmless the Licensee against all costs, expenses, losses and claims made against the Licensee as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorized User’s use of the Software. The Licensee must notify promptly the Licensor of the charge of infringement or of the legal proceeding, give the Licensor sole control of the defence and related settlement negotiations, and Licensee must provide the Licensor, at the Licensor’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of the Licensee without its prior written consent.
If the Software becomes, or in the opinion of the Licensor may become, the subject of a claim of infringement of any third-party’s intellectual property rights, the Licensor may, at its option and at its discretion: (a) procure for the Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) refund any license Fees related to this Software paid by the Licensee. The foregoing states the sole liability of the Licensor and the exclusive Licensee remedy for any infringement of intellectual property rights by the Software or any other items provided by the Licensor under this EULA.
The Licensee will indemnify and hold harmless the Licensor against all costs, expenses, losses and claims made against the Licensor as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorized User’s unauthorized use of the Software under this EULA.
The Licensor must notify promptly the Licensee of the charge of infringement or of the legal proceeding, give the Licensee sole control of the defence and related settlement negotiations, and the Licensor must provide the Licensee, at the Licensee’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of the Licensor without its prior written consent.
The Licensor shall not be liable to the Licensee where faults arise from:
The possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this EULA, if the infringement would have been otherwise avoided;
Misuse, incorrect use of or damage to the Software from whatever cause;
Any breach of the Licensee’s obligations under this EULA;
Any modification not authorized by Licensor resulting in a departure from this EULA; or
Any operator error on the part of the Licensee.
The parties agree to treat in confidence, also beyond the end of this EULA, all Confidential Information, of which they obtain knowledge or which are provided to them prior to or during performance of the contract by the other party, unless such Confidential Information becomes publicly known without a breach of the confidentiality obligation. The parties will keep and safeguard Confidential Information in a manner that excludes access by third parties. The Licensee will only enable access to Confidential Information for those employees and authorized persons who require such access in order to perform their work responsibilities. Such persons shall be instructed about the confidentiality obligation.
Where, in the course of providing its contractual obligations under this EULA, the Licensor processes personal data for which the Licensee is the responsible party, or where access to such personal data is possible, the parties shall in advance enter into an agreement on contracted data processing that complies with the relevant statutory requirements.
The Licensor may name the Customer as a referential customer as of conclusion of this EULA. The Licensee can deny this right at the time of the conclusion of this EULA as well as at any time afterwards by submitting a request via email to [email protected], requesting the references to be deleted. Upon receipt of such request, the Licensor will remove any reference to the Licensee within 30 days and make no further reference to the Licensee.
The Licensor shall be entitled to send emails to the Licensee with marketing materials regarding products and services of the Licensor similar or connected to the Software, unless the Licensee objects to such emails of the Licensor via email to [email protected]. The Licensee can object to such emails of the Licensor at any time.
Information provided by the Licensee will be used by the Licensor to provide support services, to promote our services, and to fulfil legal obligations (e.g. accounting). Information about the Licensee will not be shared with third parties. The Licensor will hold the personal data the Licensee provided to the Licensor for 3 years after the expiration of an active license, and for one year after the expiration of an evaluation license. The Licensee has the right to request details about his stored personal information, to object to the processing of his personal information, to rectify, to erase, to restrict, to port his personal information and to apply to a data protection authority. Any requests or objections regarding data protection issues you may direct to our data protection officer, reachable at [email protected].
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE LICENSOR LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO THE LICENSOR, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE THE LICENSOR LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
All notices to Licensor must be sent to e-mail address: [email protected].
Notice will be deemed received and properly served forty-eight (48) hours after an e-mail is sent.