This End-User Terms of Use (“EUTU”) is a legal agreement between you (either an individual or a single legal entity) whose details are provided to DEISER upon Purchase (defined below) (“Licensee”) and DEISER to use the Software. This EUTU applies from the date when the Licensee receives the Software from a Reseller or DEISER (“Purchase”). An amendment or addendum to this EUTU may accompany the Software. The Licensee agrees to be bound by the terms of this EUTU by installing, copying, downloading or otherwise using the Software. If the Licensee does not agree to the terms of this EUTU, the Licensee may not install, copy, download or otherwise use the Software.
1. DEFINITIONS
“Accessible Code” means source code that is unprotected and accessible.
“DEISER” means DEISER DESARROLLO E INTEGRACIÓN DE SISTEMAS, S.L.
“Application” means the Atlassian JIRA application within which the Software runs.
“Authorised User” means a person who accesses and uses the Software under a User Licence, including licensee’s affiliates and authorized agents.
“Embedded Software” means any third-party software which may contain Accessible Code, Protected Code or Media licensed by DEISER from a third party and embedded in the Software.
“Fees” mean all fees and expenses payable by the Licensee to DEISER in acquiring the Software and as applicable any Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by DEISER.
“Maintenance” means the provision by DEISER 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 DEISER.
“Parties” means either DEISER or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without DEISER’s prior written permission and is otherwise not accessible under this EUTU.
“Reseller” means a third party selling and distributing DEISER services and/or products which it is authorised by DEISER to do so.
“Software” means the DEISER software entitled above that accompanies this EUTU, which may include computer software, Accessible Code and Protected Code and may include associated media, Media, printed materials, “online” or electronic documentation, Internet-based services and Embedded Software.
“User License” means a license granted under this EUTU to the Licensee to permit an Authorised 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
Upon Licensee’s acceptance of this EUTU, DEISER grants the Licensee the non-exclusive right to use the Software subject to the following:
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The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.[GMJ1]
Evaluation License
2.3 Installation and Use
DEISER 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[GMJ2] 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 DEISER (“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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Subject to the terms of this EUTU and unless terminated earlier in accordance with this EUTU, the term granted hereunder shall be: one calendar year (365 days) from the date of Purchase for a Paid License, except that an Evaluation License will operate for the Evaluation Period only.[GMJ3]
2.6 Permitted Computers
Except as otherwise agreed in writing by DEISER, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.7 Responsibility for Non-controlled systems[GMJ4]
If DEISER 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 (“Uncontrolled Systems”), the Licensee will ensure the terms of this EUTU are complied with by users of such Uncontrolled Systems and the Licensee indemnifies DEISER for all costs, damages and loss DEISER suffers arising from such installation or use of the Software on Uncontrolled Systems.
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This EUTU applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that DEISER may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless DEISER provides other terms along with any Supplementary Software. DEISER 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.[GMJ5]
6.2 Support and Upgrades
Should any support services be provided by DEISER to the Licensee, then Licensee may request information about such services and such services may be subject to the payment of additional Fees.
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If the Software becomes, or in the opinion of DEISER may become, the subject of a claim of infringement of any third party’s intellectual property rights, DEISER 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) refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of DEISER and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by DEISER under this EUTU.
DEISER agrees to defend, indemnify, and hold harmless customer, its agents, and affiliates from and against any non-Party claims, damages, losses, costs, and expenses, including reasonable attorney’s fees, relating to use in connection with this Agreement or the delivery of software or services furnished by DEISER in the as-delivered condition and pursuant to this Agreement infringes upon the intellectual property rights of the non-Party. All application code is owned by DEISER (except external/third-party libraries). DEISER is responsible for such code and to exempt the client from any responsibility for any claim that indicates that DEISER infringes the intellectual property rights of the third party.
12.2 Licensee’s Use
Licensee will indemnify and hold harmless DEISER against all costs, expenses, losses and claims made against DEISER as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised User’s unauthorised use of the Software under this EUTU.
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