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EULA

 

 

 

End User License Agreement

 

This End User License Agreement constitutes a binding legal agreement
(“Agreement”) between you, either as an individual or an entity (“Licensee”) and
swarmOS GmbH, Hotterstrasse. 3, 80331 Munich, Germany (“Licensor”)
concerning its swarmOS software (“Software”). 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 Agreement. 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 Agreement and are agreeing to the Agreement for that entity.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE
LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE
SOFTWARE.

1. DEFINITIONS

“Accessible Code” means source code that is unprotected and accessible.
“Application” means a software application by Licensor’s which may include computer
software, Accessible Code and Protected Code, associated media, Media, printed
materials, electronic documentation, Internet-based services and Embedded Software.
“Authorized User” means a person who accesses and uses the Software under a User
License.

“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
consideration for renting the Software as well as – if applicable – for providing services
of Maintenance.

“High Priority Bug” means an error in the Software which leads to complete disability
to use the Software (e.g. Software does not load).

“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.

“Office Hours” means timeframe between 9 a.m. CET and 5 p.m. CET from Monday to
Friday.

“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 Agreement.

“Rent” means rent 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.

“Service Request” means any request from the Licensor towards Licensee including
request for support and technical questions. A Service Request receive a ticket and
will be processed through the service desk portal on swarmos.com.

“Software” means one or more Applications

“Subscription” means the process of obtaining access to Software by registering to the
Atlassian Marketplace platform, selecting a Software by Licensor, completing the order
form and processing payment of the Fee for the selected Term.

“Term” means the duration in time after which the User License expires and which is
selected on Subscription (monthly or yearly).

“Supplemental Software” means updates, supplements, add-on components, or
internet based service components of the Software that Licensor may provide to the
Licensee or make available to the Licensee after the date the Licensee has concluded
this Agreement.

“User License” means a license granted under this Agreement 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.

“User Tier” means the number of maximum users which Licensee registered for
Atlassian products.

2. RENTAL RIGHTS AND GRANT OF LICENSE, SERVICE LEVEL

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

2.1 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
not higher than 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.

2.2 Pricing Model

Licensor offers Subscription according to a staggered pricing of the Software. Fees will
be determined by the existing Licensee’s User Tier Size, as defined in Atlassian’s tier
user pricing policy (e.g. if Licensee is in possession of 500 JIRA licenses, Fees will be
due for 500 Authorized Users of the Software regardless of how many users actually
use the Software) during the Term. Fees are payable in advance, and will be due
monthly, except if Licensee opted for yearly payment on Subscription. Fees are nonrefundable
for the Term selected on Subscription. Licensor might offer trial versions of
the software which are free of charge during a trial period.

2.3 General Rental and License Terms

2.3.1 Scope

Each license granted by Licensor under this Agreement is worldwide, valid during the
Term and for the specified User Tier, non-exclusive and non-transferable, unless
otherwise specified in writing.
Licensee agrees 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 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.

2.3.3 Permitted Computers

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

2.4 Service Level

Licensor will react to Service Requests with Licensee’s technical queries regarding
potential bugs during Office Hours. Licensor will react to Service Requests regarding
High Priority Bugs within four (4) hours during Office Hours and within twenty-four (24)
hours with regard to all other queries.

3. FEES

The Licensee must pay all Fees by the due date and in the manner directed at the time
of Rent of the Software. Failure to pay Fees by the due date will result in Licensor’s
right to termination of this Agreement for cause.

4. MAINTENANCE

4.1 Supplemental Software and Services

This Agreement applies to Supplemental Software unless Licensor provides additional
terms with any Supplemental 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
Agreement. 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. This Agreement only confers the right to Licensee to use the Software
under the terms and conditions of this Agreement.

5.2 Embedded Software

The Licensor’s Software may contain 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 Agreement. 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 Agreement and to grant to the Licensee a right
to use the Software as contemplated by this Agreement;
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

If Licensee breaches this Agreement by the distribution or use of Software outside of
the terms of the User License Licensor is 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 Agreement, three times the fee Licensee would have owed if the
use of the Software had been legally covered by this Agreement

7. TERM AND TERMINATION

7.1 This Agreement is valid for the Term or until terminated with or without cause.

7.1.1 This Agreement may be terminated without cause at the end of a month by

sending a written notice at least one month before (e.g. notice of termination is received
on June 20, the Agreement will be terminated on July 31).

7.1.2 The right to terminate the Agreement for cause to a material breach is reserved.
A breach is material if a substantial provision of this Agreement is violated and – if
curable – is not cured within 20 days after having received a written notice announcing
such breach. A termination for cause is only possible within three months after having
acquired knowledge of the material breach.

7.1.3 Without prejudice to any other rights and in addition to any other termination
rights in this Agreement, Licensor may terminate with immediate effect, this Agreement
if: (a) the Licensee fails to comply with the terms and conditions of this Agreement; (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 After termination of this Agreement all rights to use the Software automatically
revert to Licensor and Licensee is not entitled to use the Software any more. Licensee
must cease access to and cease use of the Software.

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

7.4 Termination of this Agreement by Licensee before the end of the Term does not
give the right to Licensee to claim a refund of the Fee or part of the Fee, except if
Licensee has the right to terminate the Agreement for good cause; then fees for the
remaining time of the Term are refundable on a pro rata basis.

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 Agreement 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 Agreement.

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 Agreement. 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 Agreement 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 Software are hosted by third-parties, and that the availability 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 Agreement, 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 Licensee;
(c) any breach of the Licensee’s obligations under this Agreement;
(d) any modification not authorized by Licensor resulting in a departure from this
Agreement; or
(e) any operator error on the part of the Licensee.
(f) any damage arising out of the fact that Licensee did not make a daily backup of his
data and content.

10.2 Limitation on Damages

Licensor shall provide unlimited liability for gross negligence or wilful misconduct or
express representations or for claims based on Product Liability Act
(Produkthaftungsgesetz) or claims regarding to injury of body, life or health. The expiry
term is governed by law.
In the event of ordinary negligence, Licensor only accepts liability for the foreseeable
damages typical to the contract, insofar as there is a breach of duty the fulfilment of
which is vital for the proper performance of the contract and the observation of which
the buyer may regularly rely on (“cardinal obligation”). The expiry term for such claims
for damages of Licensee is one year from the legal beginning of expiry.
Insofar as the liability of the seller is excluded or limited, this also applies to the
personal liability of the employers, employees, colleagues, representatives and
vicarious agents of Licensor.

11. LICENSEE PUBLICITY RIGHTS

During the term of this Agreement, 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 info@swarmOS.com and requesting to be excluded from Software
promotional material. Requests generally are acted upon within thirty (30) calendar
days. Physical promotional material in stock may still be distributed.

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 Agreement to succeeding parties in the case of a merger,
acquisition or change of control. Licensor may assign its rights and obligation under
this Agreement without consent of Licensee. Any permitted assignee shall be bound
by the terms and conditions of this Agreement.

14. GOVERNING LAW AND VENUE

This Agreement 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 Germany with exception of conflicts
of law and the United Nations Convention on Contracts for the Sale of Goods (CISG).
The courts of Mühlheim an der Ruhr (Amtsgericht) and Duisburg (Landgericht) shall
be the exclusively competent courts of jurisdiction. However, Licensor is entitled to sue
Licensee at Licensee’s place of business.

15. ENTIRE AGREEMENT

15.1 This Agreement (and any addendum or amendment to this Agreement 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 Agreement.

15.2 Each party acknowledges that, in entering into this Agreement (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 Agreement or
not) other than as expressly set out in this Agreement or those documents.

16. NOTICES

All notices to Licensor will be sent to:
swarmOS GmbH, Hotterstrasse. 3, 80331 Munich, Germany,
info@swarmos.com . All notices to Licensee will be sent to the physical address or the
email address provided by Licensee upon Rent 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.

17. WAIVER

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

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

17.3 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.

18. SEVERABILITY

If any provision of the 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.

19. NO PARTNERSHIP

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 authorise any party to make or enter into any commitments for or
on behalf of any other party.

20. INTERPRETATION

In this Agreement, the following rules apply: (a) a reference to a party includes its
personal representatives, successors or permitted assigns; (b) a reference to writing
or written includes faxes, e-mails, communications via websites and comparable
means of communication.

21. SURVIVAL

Clauses 1, 5, 8-10, 12, 13,14-18, and 20 shall survive any termination of this
Agreement.