(1) CREATIVAS, registered in the Trade Registry of Paris as number 840 148 878, with its head office at
9 rue des colonnes
represented by Hichem Jouini in his capacity as Chief executive officer, duly authorised for the purpose thereof (hereafter referred to as the “Licensor”); and
(2) The “Licensee” which is the entity entering into the present software license agreement (hereafter referred to as the “License Agreement”) with the Licensor.
The Licensor and the Licensee shall be referred to herein either individually as a “Party” and together as the “Parties”.
IT IS HEREBY AGREED
1.1. In this License Agreement, unless the context otherwise requires:
Atlassian means the company Atlassian Corporation Plc;
Atlassian Marketplace means the platform managed by Atlassian where the Licensee purchases the Software and related Support and Maintenance Services;
Intellectual Property Rights means any intellectual property rights according to the French intellectual property Code, particularly:
License means the Software license granted by the Licensor under the conditions described in Clause 7 “Scope of Use of the Software”;
License Term means the term of the License, whether it is:
Notification Email Address means the email address the Licensee used to subscribe to the Software. It is the Licensee’s responsibility to keep the email address valid and current so that the Licensor is able to send license keys, notices, statements, and other information to the Licensee;
Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier;
Scope of Use means the authorized use of the Software as described in Clause 7 “Scope of Use of the Software” of the License Agreement;
Software means any and all Licensor’s add-on (app) and/or extension proprietary software offerings developed by the Licensor and provided to the Licensee. Third-party apps that are not from the Licensor are not Software and remain subject to their own applicable vendor terms;
Support and Maintenance Services means any corrective, update or upgrade services of the Software provided by the Licensor under the conditions described in the Licensor’s Support platform terms and conditions;
Termination Date means the date of termination of this License Agreement, howsoever arising;
User means any Licensee’s user who is entitled to use the Software pursuant to Clause 7 “Scope of Use of the Software” to this License Agreement;
Virus means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part of otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Year: the period from the Effective Date to the first-anniversary date of the Effective Date.
2.1. This License Agreement governs the Licensee’s initial purchase of the Software and future purchases by the Licensee.
3.1. Clause and paragraph headings shall not affect the interpretation of this License Agreement.
3.2. If there is an inconsistency between any of the provisions in the main body of this License Agreement and the headings, the provisions in the main body of the License Agreement shall prevail.
4.1. The License Agreement is effective as of the date the Licensee first click “I agree” (or similar button) or use or access the Software (hereafter referred to as the “Effective Date”). The License Agreement does not have to be signed in order to be binding. By clicking “I agree” (or similar button) at the time (a) the Licensee first access to or use of the Software, or (b) the Licensee places an order of the Software on the Atlassian Marketplace, the Licensee accepts to be bound by this License Agreement.
4.2. This License shall commence on the Effective Date and shall continue in full force and effect during the License Term.
4.3. The Licensee is engaged since the employee or any representative of the Licensee accepts the present License Agreement and then agreed that: (i) he has full legal authority to bind the Licensee or such entity to this License Agreement; (ii) he has read and understood this License Agreement; and (iii) he agrees to this License Agreement on behalf of the Party that he represents. If he doesn’t have the legal authority to bind the Licensee or the applicable entity, it is forbidden to click “I agree” (or similar button or checkbox) that is presented.
4.4. The Licensee agrees that if an employee or any representative of the Licensee purchases the Software using an email address from the Licensee or another entity, then (a) he will be deemed to represent such Party, (b) his click to accept will bind the Licensee or that entity to this License Agreement.
5.1. The Licensor may modify the terms and conditions of this License Agreement from time to time, with notice through the Licensee’s Notification Email Address and through the Licensor’s website.
5.2. In the event of a modification of the License Agreement, the Licensee shall accept the modified License Agreement to continue using the Software. If the Licensee objects to the modifications, the Licensee exclusive remedy is to cease using the Software.
To take into account Atlassian Marketplace technical constraints, the annual renewal of the license constitutes the most natural way for the moment for the Licensee to accept or refuse the modified license.
7.1. As of the Effective Date, the Licensor grants the Licensee a personal, non-exclusive, non-assignable, non-transferable, non-sub-licensable License to use the Software for its internal business purposes or personal use in relation to the License Agreement for the License Term and for up to the number of Users as purchased on the Atlassian Marketplace.
7.2. The Licensee may not, without the express written authorization of the Licensor, copy, reproduce, change, adapt, disassemble, translate or reverse-engineer the Software, other than as required to ensure the interoperability of the Software with other software developed independently by the Licensee.
7.3. No ownership right is conveyed to the Licensee, irrespective of the use of terms such as “purchase” or “sale”. The Licensor has and retains all right, title and interest, including all Intellectual Property Rights.
7.4. In relation to the Software, any rights provided under this License Agreement are only granted to the Licensee and shall not be considered granted to any subsidiary or holding company of the Licensee.
7.5. For each Software that the Licensee purchases, the Licensee may install one production instance of the Software on systems owned or operated by itself or one of its Users.
7.6. The Licensee is responsible for compliance of the Licensee and all its Users with this License Agreement. All use of Software must be solely for the benefit of the Licensee and must be within the Scope of Use.
8.1. During the License Term, the Licensor shall provide the Software to the Licensee in a competent and professional manner with reasonable skill and ability conforming to generally accepted software standards.
9.1. The Licensee shall use the Software in accordance with the License and comply with the terms of the License Agreement and any other referenced policies and terms of this License Agreement.
9.2. The Licensee shall comply with all applicable laws and regulations with respect to its activities under this License Agreement.
9.3. The Licensee shall use reasonable endeavors to prevent any unauthorized access to, or use of, the Software and notify the Licensor promptly of any such unauthorized access or use.
9.4. The Licensee acknowledges and agrees that the Licensor has no support, warranty, indemnification or other obligation or liability with respect to the modifications the Licensee could operate on the licensed Software or their combination, interaction or use with the Software. Any modification of the Software by the Licensee constitutes an infringement of the License Agreement and the Licensee does so at its own risk and peril.
9.5. The Licensee will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against the Licensor arising from or related to Licensee’s breach of the License Agreement, especially any claims or disputes brought (a) by a third party related to the use of the materials of the Licensee in the context of the License Agreement; or (b) by a third party relating to any content or data used by the Licensee in connection with the Software and not provided by the Licensor.
10.1. During the License Term, the Licensor will provide the Licensee with Support and Maintenance Services for the Software pursuant to the conditions described in the Licensor’s Support Platform Terms and Conditions.
11.2. The Licensee agrees that in the application of Article D. 441-5 of the French Commercial Code, any late payment of the Charges shall result in the payment of a forty-euro indemnity as compensation for recovery costs.
12.1. The Parties retain the exclusivity of their Intellectual Property Rights prior to the conclusion of the License Agreement.
12.2. The Licensee shall not:
12.3. The Licensor will retain all right, title, and interest in and to any software, materials, add-ons, deliverables, derivative works or developments that the Licensor would provide the Licensee in connection with any additional services.
12.4. The Software may include code and libraries licensed to the Licensor by third parties, including open-source software. Their use is submitted to their own software license and the Licensee shall comply with the relevant open-source licenses. The Licensee shall read and respect the provisions of Third Party Code in Atlassian Products regarding the use of third-party code.
13.1. Each Party (hereafter referred to as the “Receiving Party”) acknowledges that they may access information, that have been disclosed to the Receiving Party or its affiliates by the other Party (hereafter referred to as the “Disclosing Party”) or its agents or affiliates, which are of a confidential nature, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, Licensees, products, affairs, and finances of either Party for the time being which is confidential to that Party and trade secrets including, without limitation, technical data and know-how relating to the business of that Party or any of its Licensors, Licensees, agents, distributors, shareholders, management or business contacts (hereafter referred to as “Confidential Information”).
13.2. The Receiving Party shall keep in strict confidence all Confidential Information and any other Confidential Information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its or its affiliates’ employees, agents or sub-contractors as need to know it for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Disclosing Party.
13.3. All materials, equipment and tools, drawings, specifications and data supplied by the Disclosing Party to the Receiving Party shall at all times be and remain the exclusive property of the Disclosing Party, but shall be held by the Receiving Party in safe custody at its own risk and maintained and kept in good condition by the Receiving Party until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorization.
13.4. The obligations in this clause shall not apply in relation to:
13.5. To the extent that any Confidential Information of the other Party is stored within a computer system or is stored in machine-readable form, the Receiving Party shall ensure that such Confidential Information is secured so that access may not be gained, and copies may not be made other than in accordance with this License Agreement.
13.6. Subject always to the Receiving Party’s right to retain (for such purposes only) one copy of any Confidential Information of the other Party which the Receiving Party requires to retain to satisfy any applicable audit or regulatory requirements, the Receiving Party shall as soon as reasonably practicable on the written request of the Disclosing Party return all documents and materials containing the Confidential Information or if so required shall at the request of the Disclosing Party destroy all documents and materials containing the Confidential Information (including any copies, analysis, memoranda or other notes made by the Receiving Party) in its possession or under its custody or control and shall in addition (so far as reasonably practicable) remove any such Confidential Information stored within any computer or word processing system whether or not in machine-readable form and certify in writing to the other that all such documents and materials have been destroyed.
13.7. The Parties shall use reasonable endeavors to ensure that their employees, agents and sub-contractors comply with this clause.
13.8. From time to time, the Licensee may choose to send feedback to the Licensor while suggested. No feedback will be considered as confidential information and the Licensor reserves the right to use, develop, evaluate, or market products or services on the basis of the Licensee’s feedback or with the incorporation of the Licensee’s feedback or otherwise. Without prejudice to Clause 12 “Intellectual Property Rights”, the Licensor 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.
14.1. The Licensor may collect Personal Data from the Licensee in connection with this License Agreement.
|15.1. IMPORTANT: It is agreed between the Parties that the Licensee is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Software. Without prejudice to the Licensor’s obligations provided in Clause 8 “Licensor’s Obligations” of this License Agreement, the Licensee is fully responsible for the choice of the Software. In case of doubt, the Licensee is invited to contact the support before any purchase.|
15.2. Each Party represents and warrants that it has the legal power and authority to enter into this License Agreement. If the Licensee is an entity, he warrants that this License Agreement and each Purchase Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this License Agreement.
15.3. The Licensor warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to the Licensee, will be free of any viruses, malware, or other harmful code.
15.4. The Licensor warrants that the Software will not violate the Intellectual Property Rights of any third parties and, therefore, guarantees the Licensee against any legal action or claims brought by third parties (hereafter referred to as “Third Party Claims”) alleging that the use of the Software by the Licensee infringes or violates the rights of the third party under applicable laws. Under this warranty, the Licensor shall bear reasonable lawyers’ fees and other reasonable legal fees which the Licensee may be required to incur or suffer as a result of such legal action or claim, as well as all the direct damages the Licensee may be sentenced to pay by a binding court decision.
15.5. On becoming aware of a Third Party Claim, the Licensee shall (i) promptly notify the Licensor of such Third-Party Claim (ii) provide the Licensor with the sole control over the defense and/or settlement of such Third-Party Claim (with the Licensee retaining the right to participate in such Third-Party Claim (but not control) with its own legal counsel, at its own expense), and (iii) give reasonable cooperation and assistance to the Licensor, at the Licensor’s cost, with regard to such Third-Party Claim.
15.6. This warranty will not be applicable if the Third-Party Claim arises from (i) an allegation that does not state with specificity that the Software is the basis of the Third Party Claim, (ii) the use or combination of the Software with any other material not developed by the Licensor, (iii) the use of the Software not in accordance with this License Agreement or the Documentation, (iv) a modification of the Software by any other Party than the Licensor.
15.7. to the maximum extent permitted by law, and except as set forth in the foregoing limited warranty, the licensor and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. the licensor will not be liable for delays, interruptions, service failures or 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 software or any content therein or generated therewith, or that: (a) the use of any software will be secure, timely, uninterrupted or error-free; (b) the software will operate in combination with any other hardware, software, system, or data; (c) the software (or any products, services, information, or other material purchased or obtained by you through the software) will meet your requirements or expectations); (d) errors or defects will be corrected; or (e) the software is free of viruses or other harmful components. you may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.
16.1. The Licensor shall be liable to the Licensee for the foreseeable and direct damages in connection with this License Agreement, to the exclusion of indirect damages such as loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of Software, data or information, failure of security mechanism, interruption of business, costs of delay or for any indirect or consequential damage of any kind.
16.2. Except as expressly and specifically provided in this License Agreement, the Licensee assumes sole responsibility for results obtained from the use of the Software by the Licensee, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Licensor by the Licensee; or in the case, the Licensee does not implement the required actions.
16.3. In any event and without prejudice to the Licensee’s obligation to pay the Charges, the total liability of the Licensor to the Licensee arising under or in connection with this License Agreement shall not in respect of any Year, exceed the amount actually paid or payable by the Licensee under this License Agreement in the six (6) months immediately preceding the claim.
16.4. Nothing in this License Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, gross negligence or wilful or deliberate misconduct, or any other liability which cannot be limited or excluded by applicable law.
16.5. Without prejudice to the Licensee’s obligation to pay the Fees (including any expenses), the Licensee’s total liability to the Licensor arising under or in connection with this License Agreement shall not, in respect of any Year, exceed the amount actually paid or payable by the Licensee under this License Agreement in the six (6) months immediately preceding the claim.
16.6. The Licensor will have no obligations or responsibility under this License Agreement for issues caused by the use of any third-party hardware or Software not provided by itself.
16.7. If the Licensee enables or uses third-party products or services with the Software, the Licensee acknowledges that the third-party providers may access or use the data of the Licensee as required for the interoperation of their products and services with the Software. The Licensee is solely responsible for the decision to permit any third-party provider or third-party product or service to use the data of the Licensee. It is Licensee’s responsibility to carefully review the License Agreement between itself and the third-party provider, as provided by the applicable third-party provider. THE LICENSOR DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
17.1. The Licensee acknowledges and agrees that the Licensor may engage subcontractors without any prior written consent for the execution of the License Agreement.
18.1. This License Agreement is effective as of the Effective Date and expire on the date of expiration or termination of the License Term.
18.2. The Licensor may terminate the License Agreement if the Licensee uses the Software not in accordance with this License Agreement.
18.3. Upon any expiration or termination of the License Agreement, the License terminates and the Licensee is not authorized to use the Software. Except where an exclusive remedy may be specified in the License Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under the License Agreement, by law, or otherwise.
18.4. On termination or expiry of the License Agreement, the Licensor shall delete any information relating to the business of the Licensee stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its possession or under its control outside the premises of the Licensee, except the information the Licensor shall keep complying with laws, regulations or contractual obligations.
18.5. The following sections will survive any termination or expiration of the License Agreement: Clause 11 “Fees and payment”, Clause 12 “Intellectual Property Rights”, Clause 13 “Confidentiality, Clause 15 “Warranties and Disclaimer”, Clause 16 “Limitation of liability”, Clause 20 “Governing Law – Dispute Resolution”, Clause 21 “Miscellaneous and General”.
18.6. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Termination Date or expiry, including the right to claim damages in respect of any breach of this License Agreement which existed at or before the Termination Date or expiry, shall not be affected.
19.1. The Licensor may identify the Licensee as a customer in its promotional materials unless the Licensee asks for stopping doing so using the contact form.
20.1. The License Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and interpreted under French law.
20.2. If either Party (hereafter referred to as the “First Party”) believes in good faith that the other Party (hereafter referred to as the ”Other Party”) has breached any term of this License Agreement, then the First Party shall notify the Other Party, in writing setting forth in reasonable detail the nature of the alleged breach (hereafter referred to as the “Notice of Breach”). If the Other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach. If, however, the Other Party disputes the validity of the Notice of Breach, then the Parties shall comply with the following provisions in order to expedite the review, verification, cure and remedy of any such breach.
20.3. Any dispute to be resolved pursuant to this License Agreement shall first be submitted for resolution to the authorized contacts of each Party. If such authorized contacts are unable to resolve the dispute within fourteen (14) days after the date on which the Notice of Breach is received by the Other Party (or such longer time as it mutually agreed in writing), then each Party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute as provided in Clause 20.4 hereunder.
20.4. Each Party irrevocably agrees that the courts of Paris, France, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this License Agreement or its subject matter or formation (including non-contractual disputes or claims), not already settled amicably by the Parties under Clauses 20.2 or 20.3.
21.1. Parties must for the duration of this License Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this License Agreement.
21.2. Nothing in this License Agreement is intended to or shall operate to, create a partnership between the Parties, or to authorize either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
21.3. Each Party shall not be liable for any delay or breach in any of its obligations pursuant to this License Agreement which originates from a force majeure event within the meaning of Article 1218 of the French Civil Code.
21.4. If any provision of this License Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any such invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were modified in any way, the Parties shall negotiate in good faith to modify such provision so that, as modified, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.5. No failure or delay by a Party to exercise any right or remedy provided under this License Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.6. The rights and remedies provided under this License Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.7. Neither Party may assign (except by way of security), transfer, sub-contract or otherwise dispose of this License Agreement and any of its rights or obligations thereunder, without the prior written consent of the other Party.
21.8. The License Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement between them relating thereto. In entering into this License Agreement neither Party has relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether made innocently or negligently and whether or not made in writing) of any person (whether or not party to this License Agreement) which is not expressly set out in this License Agreement.