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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 Deiser upon Purchase (defined below) (“Licensee”) and DEISER Deiser to use the Software. This EUTU applies from the date when the Licensee receives the Software from a Reseller or DEISER 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.

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

  • “DEISER”“Deiser” means DEISER 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.

  • “Embedded Software” means any third-party software which may contain Accessible Code, Protected Code or Media licensed by DEISER Deiser from a third party and embedded in the Software.

  • “Fees” mean all fees and expenses payable by the Licensee to DEISER 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 DEISERDeiser.

  • “Maintenance” means the provision by DEISER 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 DEISERDeiser.

  • “Parties” means either DEISER 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 Deiser’s prior written permission and is otherwise not accessible under this EUTU.

  • “Reseller” means a third party selling and distributing DEISER Deiser services and/or products which it is authorised by DEISER Deiser to do so.

  • “Software” means the DEISER 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.

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Upon Licensee’s acceptance of this EUTU, DEISER Deiser grants the Licensee the non-exclusive right to use the Software subject to the following:

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The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licences for which the necessary Fees have been paid to the Reseller or DEISERDeiser. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or DEISERDeiser.

2.2 Backup

N/A

Evaluation License

2.3 Installation and Use

DEISER 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 delete, 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 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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2.4 Scope

Each license granted by DEISER Deiser under this EUTU is unless otherwise specified in this EUTU or agreed by DEISER Deiser in writing; worldwide, non-exclusive and non-transferable.

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2.7 Responsibility for Non-controlled systems

If DEISER 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 Deiser for all costs, damages and loss DEISER Deiser suffers arising from such installation or use of the Software on Uncontrolled Systems.

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5. RESERVATION OF RIGHTS AND OWNERSHIP

DEISER Deiser reserves all rights not expressly granted to the Licensee in this EUTU. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. DEISER Deiser or its relevant third parties own the title, copyright, and all other intellectual property rights in the Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software hereunder.

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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 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 Deiser provides other terms along with any Supplementary Software. DEISER 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.

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Should any support services be provided by DEISER 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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Licensee must not, whether through negligent act or omission, or without the prior written consent of DEISERDeiser, which may be withheld at DEISER’s Deiser’s discretion and include certain conditions: (a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software; (b) directly or indirectly access or use any Embedded Software independently of the rest of the Software; (c) sell; sublicense; redistribute; reproduce; transmit; circulate; disseminate; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (d) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code); (e) except as otherwise permitted in this EUTU, publish; promote; broadcast; circulate or refer publicly to the DEISER Deiser name; trade name; trademark; service mark or logo; (f) commit any act or omission the likely result of which is that DEISER’s Deiser’s or any of its third party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on DEISER’s Deiser’s interests; (g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with DEISERDeiser; or (h) copy or embed elements of the Accessible Code contained in the Software into other software.

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The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of DEISER Deiser and its third party suppliers. Licensee must not modify or alter those features to try to defeat the Software or use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EUTU.

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If the Licensee discovers it has breached any of its obligations under this EUTU and in particular but not limited to the obligations in clause 7, the Licensee must immediately report such breach to DEISERDeiser, in writing.

8.2 Breach of Additional Licences

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), DEISER Deiser and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that DEISER Deiser 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 EUTU, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that DEISER Deiser and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.

9. INVESTIGATION OF UNAUTHORISED USE AND DISTRIBUTION

If DEISER Deiser reasonably suspects the Software has been distributed to or obtained by any person or party without DEISER’s Deiser’s prior written consent, that Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EUTU and in particular, but without limitation, its obligations under clause 7, DEISER Deiser reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EUTU. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by DEISER Deiser within ninety (90) calendar days of being required, it will be considered that a breach of this EUTU has occurred allowing DEISER Deiser to terminate the licenses granted under this EUTU.

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11.1 Without prejudice to any other rights and in addition to any other termination rights in this EUTU, DEISER Deiser may terminate with immediate effect, this EUTU if

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(a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; and (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; (c) provide DEISER Deiser 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.

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If the Software becomes, or in the opinion of DEISER Deiser may become, the subject of a claim of infringement of any third party’s intellectual property rights, DEISER 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 Deiser and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by DEISER Deiser under this EUTU.

12.2 Licensee’s Use

Licensee will indemnify and hold harmless DEISER Deiser against all costs, expenses, losses and claims made against DEISER 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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Licensee acknowledges and agrees that if Licensee breaches this EUTU and DEISER Deiser or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, DEISER Deiser or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.

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To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, DEISER Deiser and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EUTU, hereby disclaim all other warranties and conditions, whether express, implied or statutory.

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The Licensee may have remedies against DEISER Deiser imposed by law or statute which cannot be excluded by DEISER Deiser and its third party suppliers. To the extent the Licensee has such legal remedies against DEISER Deiser or its third party suppliers then to the fullest extent permitted by law DEISER Deiser and its third party suppliers’ liability is limited (a) at DEISER’s Deiser’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 services; 1) re supply of the Maintenance services; or 2) the cost of having the Maintenance services supplied again; or (b) if the limitation set out in 14.1(a) is not applicable then to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.

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Subject to section 14.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of DEISER Deiser and any of its third party suppliers under any provision of this EUTU and Licensee’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.

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Notwithstanding anything else in this section 14, to the maximum extent permitted by applicable law, in no event shall DEISER Deiser or its third party suppliers be liable for any loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data; special; incidental; punitive; indirect; or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software; the provision of or failure to provide Maintenance or other services; information; software; and related content through the Software or otherwise arising out of the use of the Software; or otherwise under or in connection with any provision of this EUTU, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of DEISER Deiser or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if DEISER Deiser or any third party supplier has been advised of the possibility of such damages.

14.4 DEISER Deiser shall have no liability 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 licence, if the infringement would have been otherwise avoided; or
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by; or
(f) any breach of the Licensee’s obligations under this licence; or
(g) any modification not authorised by DEISER Deiser resulting in a departure from the licence; or
(h) any operator error on the part of the Licensee.

15. PUBLICITY RIGHTS

Licensee grants DEISER Deiser the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny DEISER Deiser this right at any time by submitting a written request via email to info@deiserinfo@Deiser.com, requesting to be excluded from Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process.

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This EUTU may not be amended except with the written agreement of DEISER Deiser whose consent may be withheld in its complete discretion without any requirement to provide reasons.

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Licensee may assign this EUTU 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) DEISER Deiser 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 EUTU and (c) upon such assignment the assignee makes no further use of the Software licensed under this EUTU. DEISER Deiser may assign its rights and obligation under this EUTU without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

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This EUTU (and any addendum or amendment to this EUTU which is included with the Software) is the entire agreement between the Licensee and DEISER Deiser 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 EUTU.

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21. NOTICES

All notices given to DEISER Deiser must be given to DEISER Calle Valentín Beato, 22 – planta baja derecho – 28037 Deiser Calle Pedro Muñoz Seca, 2. 6ª Planta 28001 Madrid. SPAIN and to the Licensee at the address provided by it 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 e-mail was sent to the specified e-mail address of the addressee.

22. WAIVER

22.1

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

22.2

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

22.3

No waiver by DEISER Deiser 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.

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