...
2 TYPES OF SOURCESENSE PRODUCTS
This Agreement governs (a)
Sourcesense's commercially available downloadable software products including Cloud-based products (SaaS or Hosted Services), Server (Perpetual License) and Data Center (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 Sourcesense. Software and Hosted Services, together with related documentation, are referred to as "Products".
3 ACCOUNT REGISTRATION
You may need to register for an either or both of
a Sourcesense account,
an Atlassian account.
in 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.
...
Subject to the terms and conditions of this Agreement, Sourcesense grants you a non-exclusive, non-sublicenseable 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.
...
Hosted Services are provided on a subscription basis for a set term specified in your Order ("Subscription Term"). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at my.atlassian.com. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
...
"Your Data" means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Sourcesense. Subject to the terms of this Agreement, you hereby grant to Sourcesense a non-exclusive, worldwide, royalty-free right to (a) collect
Collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and
...
For Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service.
Sourcesense may also access your account or instance in order to respond to your support requests.
...
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:
...
Prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice);
The exclusive right to control and direct the investigation, defense, or settlement of such claim; and
All reasonable necessary cooperation of Sourcesense at your expense.
...
Sourcesense has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement, we may (1) remove
Remove Your Data from the Hosted Services or
...
Suspend your access to the Hosted Services.
We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
...
Sourcesense 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 Sourcesense may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless Sourcesense provides other terms along with any Supplementary Software. Sourcesense 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 Sourcesense will be substantially as described in any separate written materials provided by Sourcesense to the Licensee and may be subject to the payment of additional Fees.
...
We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below ("No-Charge Products"). .
Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available ("Beta Versions") are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 11 (No-Charge Products).
All information regarding the characteristics, features or performance of Beta Versions constitutes Sourcesense's Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
...
Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase" or "sale". Sourcesense and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their "look and feel", any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Sourcesense, including without limitation as they may incorporate Feedback ("Sourcesense Technology"). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Sourcesense, including sharing Your Modifications or in the course of receiving Support and Maintenance ("Feedback"). Sourcesense 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. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Sourcesense's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
...
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Sourcesense Technology and any performance information relating to the Products shall be deemed Confidential Information of Sourcesense without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document:
...
Neither party (nor its suppliers) shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if informed of the possibility of such damages in advance. Neither party's aggregate liability to the other shall exceed the amount actually paid by you to us for products and support and maintenance in the 12 months immediately preceding the claim. Notwithstanding anything else in this agreement, our aggregate liability to you in respect of no-charge products shall be US$20. This section 19 (limitation of liability) shall not apply to (1) amounts :
Amounts owed by you under any orders,
...
Either party's express indemnification obligations in this agreement, or
...
Your breach of section 12 (restrictions).
To the maximum extent permitted by law, no suppliers of any third-party components included in the products will be liable to you for any damages whatsoever. The parties agree that the limitations specified in this section 16 (limitation of liability) will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
...
Sourcesense's liability for infringement of third-party intellectual property rights shall be limited to breaches subsisting in the UK (up to an aggregate amount of £1,000,000) and in the USA (up to an aggregate amount of $1,000,000). This indemnification obligation shall not apply if (1) the :
The total aggregate fees received by Sourcesense with respect to your license to Software in the 12 month period immediately preceding the claim is less than US$50,000;
...
The Product is modified by any party other than Sourcesense, but solely to the extent the alleged infringement is caused by such modification;
...
The Product is used in combination with any non-Sourcesense product, software or equipment, but solely to the extent the alleged infringement is caused by such combination;
...
To unauthorized use of Products;
...
To any Claim arising as a result of Your Data or any third-party deliverables or components contained with the Products;
...
To any unsupported release of the Software;
...
You settle or make any admissions with respect to a claim without Sourcesense's prior written consent.
This section 17 (IP indemnification by Sourcesense) states our sole liability and your exclusive remedy for any infringement of intellectual property rights in connection with any product or other items provided by Sourcesense under this agreement.
...
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties through mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
No party may commence any court proceedings or arbitration proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute under mediation. If the parties do not reach settlement within a period of 60 days, arbitration proceedings may commence only in London, England unless mutually agreed between the parties. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
...
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 Sourcesense Limited, 7 General Gordon Square, London, SE18 6FH 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 Sourcesense 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 authorise any party to make or enter into any commitments for or on behalf of any other party.
...