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This End-User License Agreement (“EULA”) is a binding legal agreement between you, either as an individual or, an entity and its Affiliates (“Licensee”) and Digital Toucan Limited, 59 Bromyard House, W3 7BE London, United Kingdom (“Licensor”) concerning its Software (as defined below). An amendment or addendum to this EULA may accompany the Software, and any such amendment or addendum shall be considered part of the EULA.

By installing, copying, downloading or otherwise using the Software, or by clicking a box indicating your acceptance, Licensee agrees to be bound by the terms of this EULA. If you are entering into this agreement on behalf of an entity, you represent that you have the authority to bind such entity to the EULA and are agreeing to the EULA for that entity.

IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, THE LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.

1.DEFINITIONS

“Accessible Code” means source code that is unprotected and accessible.

“Affiliate” means another entity controlled by or under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Application” means the Atlassian Jira application within which the Software runs.

“Authorized User” means a person who accesses and uses the Software under a User License.

“Cloud Products” means Digital Toucan Limited Software hosted in the cloud.

“Embedded Software” means any third party software licensed by Licensor from a third party and embedded in the Software.

“Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Software and as applicable any Maintenance or User Licenses.

“Free License” means a license for which the Fees are waived by Licensor.

“Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.

“Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.

“OEM Distribution” means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.

“Paid License” means a license for which Fees have not been waived by Licensor.

“Parties” means either Licensor or the Licensee or both.

“Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this EULA.

“Purchase” means acquisition of the Software from a Reseller or Licensor.

“Reseller” means a third party selling and distributing Licensor services, products, or both, under authorization from the Licensor.

“Software” means the Licensor’s branded software that accompanies this EULA, which may include computer software, Accessible Code and Protected Code, associated media, Media, printed materials, electronic documentation, Internet-based services and Embedded Software.

“User License” means a license granted under this EULA to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.

2. GRANT OF LICENSE

The Software is licensed, not sold.  Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the right to use the Software subject to the following:

2.1 Paid License

2.1.1 Authorized Users

The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently 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.

2.1.2 Backup

The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose.

2.2 Evaluation License

2.2.1 Installation and Use

Licensor may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. 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.

2.3 General License Terms

2.3.1 Scope

Each license granted by Licensor under this EULA is worldwide, nonexclusive and non-transferable, unless otherwise specified in writing.

Licensee agree not to (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software; (b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form any part of or the whole of the Software or any data/information not owned by the Licensee; (c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and (d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.

2.3.2 Duration

Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be: (a) for a Paid License of the downloaded Software, perpetual; (b) for a Cloud Product, the period of time of the Paid License subscription or renewal, or (c) for an Evaluation License, the Evaluation Period.

2.3.3 Protection Mechanisms

The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.

2.3.4 Permitted Computers

Except as otherwise agreed in writing by Licensor, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.

2.3.5 Responsibility for Non-controlled systems

If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.

3. FEES

The Licensee must pay all Fees by the due date and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.

4. MAINTENANCE

4.1 Supplemental Software and Services

This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software (“Supplemental Software”), unless Licensor provides additional terms with any Supplementary Software.

4.2 Support Services

Licensor may offer support services, and such services may be subject to the payment of additional fees.  Any such support services will be the subject of a separate agreement.

5. INTELLECTUAL PROPERTY

5.1 Ownership and Reservation of Rights

Licensor retains all rights, title and interest in and to the Software (other than Embedded Software), as well as all intellectual property rights (such as copyright, patent and trademark) in and to the Software not expressly granted to Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.

5.2 Embedded Software

The Licensor’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this EULA. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.

5.3 Licensee shall not remove markings

Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.

5.4 Warranty

The Licensor warrants that:

it has the right to enter into this licence and to grant to the Licensee a licence to use the Software as contemplated by this EULA;
the Software will conform in all material respects to the Software’s documentation; and
the Software is free from viruses, worms, time bombs, Trojan horses and other harmful code.

6. BREACH BY LICENSEE

6.1 General

If the Licensee materially breaches any of its obligations, or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing as required in Clause 17 (Notices).

6.2 Breach of Additional Licenses

Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.

7. TERMINATION

7.1 

Without prejudice to any other rights and in addition to any other termination rights in this EULA, Licensor may terminate with immediate effect, this EULA if: (a) the Licensee fails to comply with the terms and conditions of this EULA; (b) 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; (c) 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; (d) 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 Licensee; (e) 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 Licensee (being a company); (f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; (g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee; (h) a creditor or encumbrancer of 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 Licensee’s assets and such attachment or process is not discharged within 14 days; or (i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

7.2 

Upon termination of a license granted under this EULA, the Licensee must at its own cost as soon as is reasonably practicable:  (a) cease access to and cease use of the Software; and (b) remove all copies of the Software from its computer systems or any Un-controlled Systems, including archival or backup systems; and (c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.

7.3 

Upon at least 30 days notice, Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

8. INDEMNIFICATION

8.1 Indemnification by Licensor

Subject to Section 10, Licensor will indemnify and hold harmless Licensee against all costs, expenses, losses and claims made against Licensee as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorized Users use of the Software. Licensee must notify promptly Licensor of the charge of infringement or of the legal proceeding, give Licensor sole control of the defense and related settlement negotiations, and Licensee must provide Licensor, at Licensor’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of Licensee without its prior written consent.

If the Software becomes, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party’s intellectual property rights, Licensor may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) terminate immediately this EULA and refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of Licensor and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Licensor under this EULA.

8.2 Indemnification by Licensee

Licensee will indemnify and hold harmless Licensor against all costs, expenses, losses and claims made against 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. Licensor must notify promptly Licensee of the charge of infringement or of the legal proceeding, give Licensee sole control of the defense and related settlement negotiations, and Licensor must provide Licensee, at Licensee’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of Licensor without its prior written consent.

9. LIMITED WARRANTY

9.1 Disclaimer of Warranties

To the maximum extent permitted by applicable law, Licensor and its third party suppliers provide the Software and any Maintenance (Clause 6) AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA hereby disclaim all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, or reliability. Additionally, Licensee acknowledges that Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement.

9.2 Non-excludable Remedies

The Licensee may have remedies against Licensor imposed by law or statute that cannot be excluded by Licensor and its third party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability are limited (a) at 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 set forth in Clause 10.2(a) is not applicable, then Licensor’s maximum liability shall be equal to three times the amount actually paid by the Licensee for the Software.

10. LIMITATION OF LIABILITY

10.1 Licensor shall not be liable to the Licensee where faults arise from:

(a) 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;

(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by;

(c) any breach of the Licensee’s obligations under this EULA;

(d) any modification not authorized by Licensor resulting in a departure from this EULA; or

(e) any operator error on the part of the Licensee.

10.2 Limitation on Damages

Notwithstanding anything in this Agreement and except for liabilities arising from (i) the indemnity obligations under Clause 9 (indemnity), (ii) the gross negligence or willful misconduct of a party, or (iii) the breach of a party’s obligations under Clause 5 (IP), in no event shall (a) Licensor or its third party suppliers be liable with respect to any subject matter of this Agreement under any contract; tort including negligence or strict liability; indemnity or other legal, contractual or equitable theory for any indirect, special, punitive, incidental or consequential damages, however caused and whether or not advised in advance of the possibility of such damages; damages for lost profits or lost data; or cost of procurement of substitute goods, technology or services; or (b) Licensor’s aggregate liability arising under, with respect to, or in connection with this Agreement exceed three times the Fees actually paid by the Licensee for the Software.

For clarity, the maximum liability of Licensor under this EULA shall not exceed three times the Fees actually paid by the Licensee for the Software.

11. LICENSEE PUBLICITY RIGHTS

During the term of this EULA, Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email to support@digitaltoucan.com and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.

12. IMPROVING LICENSOR’S PRODUCTS

Licensor is always striving to improve its products. In order to do so, Licensor needs to collect information about its users and to measure, analyze, and aggregate how its users interact with its products, such as usage patterns and characteristics of our user base. Licensor collects such information and uses the information as per its Privacy Policy. Licensee has reviewed and agrees to Licensor’s Privacy Policy.

13. ASSIGNMENT

Licensee may assign this EULA to: (i) succeeding parties in the case of a merger, acquisition or change of control; or (ii) if Licensee is a supplier to a government agency; provided, however, that in each case, (a) Licensor is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EULA and (c) upon such assignment the assignee makes no further use of the Software licensed under this EULA.

Licensor may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

14. EXPORT RESTRICTIONS

The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.

15. GOVERNING LAW AND EXCLUSIONS

15.1 Governing Law and Venue

This EULA and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of of England and Wales, and the English courts shall be the competent courts of jurisdiction.

15.2 Exception from Jurisdiction.

Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee place of residence).

15.3 Exclusion of UN Convention

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.

16. ENTIRE AGREEMENT

16.1 

This EULA (and any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA.

16.2 

Each party acknowledges that, in entering into this EULA (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA or those documents.

16.3 

Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this EULA.

16.4 

Nothing in this clause shall limit or exclude any liability for fraud.

17. NOTICES

All notices to Licensor will be sent to:

Digital Toucan Limited, 59 Bromyard House, W3 7BE, London, support@digitaltoucan.com

All notices to Licensee will be sent to the physical address or the email address provided by Licensee upon Purchase of the Software.

Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an electronic communication, that such communication was sent to the specified address of the addressee.

18. WAIVER

18.1

If Licensor fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if Licensor fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.

18.2 

A waiver by Licensor of any default shall not constitute a waiver of any subsequent default.

18.3 

No waiver by Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.

19. SEVERABILITY

19.1 

If any provision of the EULA (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.

19.2 

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.

20. NO PARTNERSHIP

Nothing in the EULA 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 authorise any party to make or enter into any commitments for or on behalf of any other party.

21. INTERPRETATION

In this EULA, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a party includes its personal representatives, successors or permitted assigns; (c) the headings in this EULA are inserted for convenience only and shall not affect its construction; (d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; (e) a reference to one gender includes a reference to the other gender; (f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (g) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.

22. SURVIVAL

Clauses 1, 5-10, 12, 15-19, and 21 shall survive any termination of this EULA.