Updated 2020

End-User License Agreement

IMPORTANT NOTE: PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE APPSVIO SOFTWARE (“SOFTWARE”). THIS EULA IS AN AGREEMENT BETWEEN YOU (“LICENSEE”) AND APPSVIO (“LICENSOR” OR “APPSVIO”). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR OTHERWISE USING THE SOFTWARE BUTTON LICENSEE, OR THE PERSON OR ENTITY ON BEHALF OF WHICH THE INDIVIDUAL INSTALLING THE SOFTWARE IS ACTING, UNCONDITIONALLY AGREES TO THE TERMS OF THIS AGREEMENT. CLICK ON THE “ACCEPT” BUTTON TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WANT TO BE BOUND BY THIS AGREEMENT YOU SHALL NOT BE ABLE NOR ENTITLED TO DOWNLOAD, INSTALL, COPY, ACCESS OR OTHERWISE USE THE SOFTWARE. Licensor and Licensee may individually be referred to as “Party” and jointly as the “Parties”. 1. Definitions 1.1 Authorized User means a unique person who is given access to the Software under a User License. 1.2 Beta License means a free time-limited license to use Beta Version, offered by Appsvio to general public and accepted by the Licensee. 1.3 Beta Version means a specific version of the Software, which either (i) is explicitly marked as “Beta” or (ii) has associated version number beginning with zero (“0”). 1.4 Commercial License means a license to use the Software obtained or renewed by the Licensee by paying Fees. 1.5 End-of-Life Date means for Beta Version the last date of Appsvio support for that specific version of the Software. 1.6 Fees mean all fees and expenses payable by the Licensee to Appsvio in acquiring the Software and as applicable any Maintenance or User Licenses. 1.7 Appsvio means a company incorporated and existing under the laws of the USA, with its registered office in Delaware. 1.8 Maintenance means Software updates made generally available by Appsvio to the Licensee from time to time and includes support services as documented in the service level agreement (available on Service Level Agreement) 1.9 Maintenance Expiration Date means the date of the last day Appsvio provides Maintenance to the Licensee. 1.10 Non-Commercial License means a free license provided by Appsvio under additional restrictions, specified in the license description on the Appsvio web site (www.appsvio.com). 1.11 Release Date means the date associated with a specific version of the Software as the date of release of that version to general public. 1.12 Reseller means an entity authorized by Appsvio to sell and distribute the Software. 1.13 Software means the relevant computer software, developed by Appsvio and distributed by Appsvio or a Reseller and acquired by the Licensee. 1.14 User License means a license granted under this Agreement to the Licensee to permit an Authorized User to use the Software. 2. License Grant 2.1 General License Terms 2.1.1 Subject to Licensee’s continuous compliance with this Agreement and timely payment by the Licensee of the applicable Fees, Appsvio grants the Licensee a limited, non-exclusive and non-transferable license, without the right to sublicense, to install, use of the Software or specific versions of the Software within the scope of the license type and in a manner consistent with the terms of this Agreement. 2.1.2 Provided that the Licensee ensures that anyone who uses the Software does so only on Licensee’s behalf and complies with the terms of this Agreement, the Software may be used by any Authorized User from an unlimited number of computers. Except as otherwise expressly permitted by Appsvio, the Licensee shall only install the Software and make the Software available for use on hardware systems owned, leased of controlled by the Licensee (hereinafter “Controlled Systems”). In case that Appsvio permits the Licensee to install the Software or make the Software available for use on other systems that the Controlled Systems, the Licensee shall ensure the terms of this Agreement are complied with by users of such Controlled Systems and shall indemnify Appsvio for all costs, damages and loss Appsvio suffers from such installation or use of the Software. 2.1.3 Unless otherwise specified in this Agreement or at the time of purchase, license term shall be perpetual. Upon expiration date or termination of the License, the Licensee and the Authorized Users may not use the Software unless the Licensee had renewed the License. 2.2 License Types and Permitted Use 2.2.1 Commercial License. Any version of the Software with a Release Date prior to the Maintenance Expiration Date may only be installed on a single server, with the number of Authorized Users concurrently accessing and using the Software equal to the number of User Licenses purchased. Additional User Licenses may be purchased by the Licensee on payment of the appropriate Fees to Appsvio or the Reseller. 2.2.2 Beta/Evaluation License. Any Beta Version may be installed on multiple computers, giving access to an unlimited number of Authorized Users. The Beta/Evaluation License shall be free of charge. The Beta/Evaluation License term shall expire on the End-of-Life Date of the specific Beta Version. The End-of-Life Date shall be defined for each Beta Version separately, taking into account a minimal license term of six (6) months as from the date on which the relevant Beta Version was first made available by Appsvio. 2.2.3 Non-Commercial License. Any version of Software may be installed on multiple computers, giving access to an unlimited number of Authorized Users. 2.2.4 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 can be requested through the Appsvio support channel. 2.3 Other Restrictions The Software may not be copied in whole or in part, except for a backup copy that bears all copyright notices and any other identifying or restrictive legends that appear on or in the Software as received. Except as otherwise expressly permitted by Appsvio, the Software may not be sold, redistributed (except for the redistribution to Authorized Users), reproduced, transmitted, put in circulation, disseminated, translated to or reduced from any electronic medium in machine readable form. It is strictly prohibited to decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any portion of the Software. The license which is locked to a specific server may not be installed on any different server. 3. Limited Source Code License Grant For the purposes of this Agreement, Appsvio may provide some elements of the Software in source code form (hereinafter “Source Code”) in which case, and unless otherwise specified, Appsvio shall grant the Licensee a personal, limited, non- exclusive, non-transferrable and non-assignable right to modify Source Code for the sole purposes of developing bug fixes, customizations and additional features for the Software (hereinafter “Derivative Works”), provided that the use of such Derivative Works shall be limited to Licensee’s internal use in connection with the Software. APPSVIO SHALL NOT PROVIDE ANY SUPPORT, WARRANTY, INDEMNITY AND SHALL NOT BE HELD LIABLE FOR ANY DERIVATIVE WORKS OR ANY EFFECT THEY MAY HAVE ON THE OPERATION OF THE SOFTWARE. 4. Intellectual Property Rights 4.1 All rights, title and interest, including any intellectual and industrial property rights in the Software are exclusively owned by Appsvio and/or its affiliates, and save for the user rights expressly granted to the Licensee under this Agreement, the Licensee is not granted any rights therein. 4.2 The Software and any authorized copies that the Licensee makes are protected by law and international treaty provisions. 4.3 The Source Code of the Software is a valuable trade secret and shall be considered confidential information of Appsvio. In the event that the Licensee develops any Derivative Works using the Source Code of the Software, Appsvio shall own all right, title and interest, including any intellectual property right in and to such Derivative Works and the Licensee hereby agrees to secure any additional confirmations, assignments or other instruments as may be necessary to vest title to any such Derivative Works in Appsvio as contemplated by this Section 4.3. No amount shall be payable by Appsvio to the Licensee for the assignment of any rights in such Derivative Works as set forth herein. 4.4 In the event the Software, in Appsvio opinion, is likely to become or become the subject of a claim of infringement of a third party’s intellectual property rights, Appsvio may at its own option and its sole discretion: (i) obtain for Licensee the right to continue to exercise its rights in respect of the Software as per terms of this Agreement, (ii) modify or replace the (alleged) infringing material to make it non-infringing, or (iii) terminate this Agreement with immediate effect. 4.5 Appsvio will indemnify and hold harmless Licensee against reasonable costs, expenses, losses and claims against or incurred by Licensee as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s use of the Software. This indemnification obligation is not subject to section 9. 4.6 The Licensee will indemnify and hold harmless Appsvio against all costs, expenses, losses and claims made against Appsvio as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorized Users’ modification to the Software or combination of the Software with third party products. 5. Non-Disclosure The Licensee agrees to treat the Software, the associated documentation and any other information obtained in connection with this Agreement as strictly confidential, not to use any of the foregoing except to exercise its rights and perform its obligations hereunder. The Licensee shall protect the Software, the associated documentation and any other information obtained in connection with this Agreement against disclosure in accordance with the highest applicable standards. 6. Fees 6.1 As consideration for the Software Commercial License granted to the Licensee under this Agreement, the Licensee shall pay Appsvio/the Reseller a license fee as agreed between the Parties. The Fees shall be invoiced in accordance with the invoicing method agreed between the Parties. The invoices are due and payable in full upon the date of its issuance. Fees stated are exclusive of applicable taxes, which shall be additionally charged and paid by the Licensee. All payments made by the Licensee under this Agreement will be final and non-refundable. 6.2 Any failure to pay Fees on the due date will result in the immediate termination of the licenses granted under this Agreement. 6.3 Return Policy. As part of our commitment to customer satisfaction, Licensee may terminate initial Order of the applicable Software under this Agreement, for no reason or any reason, by providing notice of termination and returning any applicable Software to Atlassian no later than thirty (30) days after the Order date for such Software. In the event Licensee terminate the initial Order under this Section 6.3, Licensee is expected to stop any usage of the provided Software. At Licensees request, Appsvio will refund the amount paid under such Order. This termination and refund right applies only to the initial Order and only if this termination right is exercised within the period specified above. 7. Termination 7.1 Except for the Beta/Evaluation License, all licenses under this Agreement are effective until terminated. 7.2 The Beta/Evaluation License shall automatically terminate upon expiry of the applicable End-of-Life Date, save as expressly agreed otherwise by the Parties. 7.3 Appsvio shall be entitled to terminate this Agreement in whole or in part (including any of the licenses, regardless of whether or not perpetual) if the Licensee fails to comply with the terms and conditions of this Agreement. Regardless the ground of the termination, there shall be no refund of any Fees paid. 7.4 The decommissioning of the Software (including, but not limited to, installing another version of the Software) by the Licensee will have, as a consequence, the termination of this Agreement. 7.5 Upon expiry or termination of this Agreement for whatsoever reason, (i) any licenses granted hereunder shall automatically terminate and the Licensee shall promptly cease all use of the Software and shall at its own cost cease permitting access to the Software and procure that all Authorized Users immediately cease all use of the Software and shall destroy all copies of the Software and documentation within its possession or control, except for perpetual licenses which shall survive termination save as stipulated otherwise in 7.3 above, and (ii) Appsvio’s obligations hereunder shall immediately terminate. In the event of any termination of this Agreement, the provisions that by their nature are intended to survive termination, including Sections 2.3, 4, 5, 8, 9, 12, 13 and 14, shall survive termination 8. Disclaimer of Warranties 8.1 THE LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS BEING LICENSED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, AND APPSVIO HEREBY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FITNESS FOR ANY PARTICULAR PURPOSE, THE WARRANTY THAT THE SOFTWARE WILL OPERATE ERROR FREE OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE LICENSEE IS SOLELY RESPONSIBLE FOR BACKING UP, AND WILL BACK UP, ITS SYSTEM AND DATA BEFORE INSTALLING OR RUNNING THE SOFTWARE. 8.2 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPSVIO OR THE RESELLER SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, THE LICENSEE SHALL BEAR THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 9. Limitation of Liability To the maximum extent permitted under applicable law, Appsvio excludes its liability for damages of any kind or nature, including without limitation any compensatory, incidental, direct, indirect, special, punitive or consequential damages (including (without limitation) loss of use, loss or corruption of data, loss of income or profit, loss of or damage to property, claims of third parties, reputational harm, opportunity loss, loss of contracts or customers, loss of goodwill, loss of anticipated savings, recoupment of any investment made, the cost of procuring replacement goods or services, and other losses including attorneys’ fees) in connection with (a claim relating to) this Agreement, including (without limitation) claims resulting from the (non-)performance of the Software. The foregoing exclusion shall equally apply to the benefit of Appsvio’s and its affiliates’ employees, agents, suppliers and contractors. In the event that liability is nevertheless imposed on Appsvio, its affiliates, their employees, agents, suppliers or contractors, the liability shall not exceed the amount of the Fees (excl. taxes) paid for the Software, if any. In no event shall Appsvio have any obligations, responsibilities or liability whatsoever with respect to a backup copy of the Software made by the Licensee. Third party material shall be exclusively governed by the applicable third party terms and conditions. 10. Privacy and Data Protection 10.1 The Licensee shall (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from all users and any data subject of which personal data is provided to Appsvio, to permit the processing of the data by the Licensee and Appsvio and the Appsvio’s hosting partner, and their respective affiliates, subsidiaries, subcontractors and licensors. If and to the extent required by law, Licensee shall notify and obtain the explicit consent of the individual users of the Software and data subjects concerned that their data may be processed by Appsvio (and its subcontractors). 10.2 Appsvio shall use Licensee’s data only in respect of the execution of this Agreement. Additionally, Appsvio shall only access and disclose personal data from, about or related to the Licensee, users of the Software and any data subjects, to law enforcement or other government authorities, to the extent required by law. 10.3 Appsvio and the Licensee agree upon a data processing agreement. Appsvio shall always process any personal data received under this Agreement, pursuant to the data processing agreement concluded between Appsvio and the Licensee. 10.4 If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance. 11. Miscellaneous 11.1 This Agreement may not be amended except with the written agreement of Appsvio, which consent may be withheld at its complete discretion and without any further requirement of justification. 11.2 The Licensee may not assign this Agreement without prior written approval of Appsvio. Appsvio 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.12. Severability In any provision of this Agreement is found void, invalid, unenforceable or contrary to applicable law, such provisions shall be construed, limited or altered (as necessary) and all other provisions shall continue in full force and effect. 13. Entire Agreement This Agreement is the entire agreement between the Licensee and Appsvio 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. Any purported oral modification of this Agreement shall be null and void. 14. Governing Law This Agreement shall be governed by and construed in accordance with the US law and the Parties submit to the exclusive jurisdiction of the courts of Delaware 15. Contact Information Any questions or communications in relation to this Agreement should be sent to: Appsvio LLC at contact@appsvio.com