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2 Types of White Software Products. This Agreement governs (a) White Software’s commercially available downloadable software products including Cloud-based products (SaaS or Hosted Services), Server (Perpetual License) and DataCenter (Subscription Licenses) (and may include computer software, Accessible Code, Protected Code and may include associated media, icons, images, text files, pdfs or other static non-code assets contained within the software, printed materials, “online” and electronic documentation and internet-based services) (“Software”) and any related support or maintenance services provided by White Software. Software and Hosted Services, together with related documentationDocumentation, are referred to as “Products”.
3 Account Registration. You may need to register for an either or both of
1. an a White Software account
2. an Atlassian account
in order to place orders or access or receive any Products. Any registration information that you provide to us or Atlassian must be accurate, current and complete. You must also update your information so that we may send notices, statements, and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
4 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Authorized Users may be maybe you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
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5.1 Your License Rights. Subject to the terms and conditions of this Agreement, White Software grants you a non-exclusive, non-sublicenseable sublicensable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, excluding Cloud Applications. The term of each Software license (“License Term”) will be specified in your order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your order.
5.2 Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one production instance of the Software on systems owned or operated by you (or your third-party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). We also make available “developer” licenses free of charge for certain of our Software offerings to allow you to deploy non-production instances, such as for staging or QA purposes. Details for how to request non-production licenses are available on the purchase licensing section of the Atlassian website.
5.3 Your Modifications. Subject to the terms and conditions of this Agreement for any elements of the Software provided by White Software in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software. The Licensee is also permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. Any modified source code constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, White Software has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You shall indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section 6.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient insufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all reasonably necessary cooperation of White Software at your expense.
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5.5 White Software may in its sole discretion provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality. If the Software is only provided for evaluation purposes the rights of the Licensee are limited to this evaluation license which permits the Licensee to download, install, use and operate the Software for a limited period (“Evaluation Period”) and be accessed by a limited number of temporary users only, as determined by White Software (“Evaluation Licence”). On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
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6.3 Credentials. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions are taken using your accounts and passwords, and you agree to immediately notify Atlassian of any unauthorized use of which you become aware.
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6.5 Security. White Software implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves the transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
6.6 Storage Limits. There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. Atlassian and White Software both reserve the right to charge for additional storage or overage fees at the rates specified on our websites at www.atlassian.com and whitesoftware.atlassian.com. We may impose new , or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.
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7.1 General. You must ensure that your use of all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to White Software and to grant the rights granted to White Software in this Agreement and (ii) Your Data and its transfer to and use by White Software as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection, and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. White Software assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
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7.3 Indemnity for Your Data. You will defend, indemnify and hold harmless White Software from and against any loss, cost, liability or damage, including attorneys’ fees, for which White Software becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient insufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of White Software at your expense.
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8. Support and Maintenance.White Software will provide the support and maintenance services for the Products (“Support and Maintenance”) during the period for which you have paid the applicable fee. This Agreement applies to updates, supplements, add-on components, or Internet-based services components which includes use of “cloud” based applications, of the Software (“Supplementary Software”) that White Software may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software , unless White Software provides other terms along with any Supplementary Software. White Software reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software. Any support services provided by White Software will be substantially substantial as described in any separate written materials provided by White Software to the Licensee and may be subject to the payment of additional Fees
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9.1 Delivery. We will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for the installation of any Software, and you acknowledge that both White Software and Atlassian have no further delivery obligation with respect to the Software after delivery of the license keys. The delivery of license keys shall be made by Atlassian through the Atlassian marketplace on behalf of White Software , unless other arrangements have been made directly with White Software outside the scope of this Agreement.
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24. General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to White Software Group Ltd, Unit 2 Waterside, 44-48 Wharf Road, London, N1 7UX Attn: Legal Counsel. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited. This Agreement is the entire agreement between you and White Software relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties. Nothing in the Agreement is intended to , or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
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