EULA Sub-Task Toolkit
END-USER LICENSE AGREEMENT
THIS END-USER LICENSE AGREEMENT (or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU” OR “LICENSEE”) AND BOTRON SOFTWARE SOLUTIONS, LTD. (“BOTRON”). BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND LICENSEE TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO BOTRON.
“Accessible Code” means source code that is unprotected and accessible.
“BOTRON” means Botron Software Solutions, Ltd., with principle place of business at 2 Nikolay Haytov Str., Building B, Office B16, Sofia 1113, Bulgaria.
“Authorized Reseller” means a third party selling and distributing BOTRON services and/or products that it is authorized by BOTRON to do so.
“Authorized User” means a person who is legally authorized to access and use the Software under a User License.
“Embedded Software” means any third party software which may contain Accessible Code, Protected Code or Media licensed by BOTRON from a third party and embedded in the Software.
“License Fees” mean all license fees paid by Licensee to BOTRON to license the Software including any fees for additional User Licenses.
“Maintenance” means the provision by BOTRON 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.
“Parties” means either BOTRON or Licensee or both.
“Protected Code” means any source code that is protected against access by Licensee and any third party without BOTRON’s prior written permission and is otherwise not accessible under this EULA.
“Software” means the BOTRON software entitled “Sub-Task Toolkit“ that accompanies this EULA, which may include computer software, Accessible Code, Protected Code, associated Media, printed materials, printed, online or electronic documentation, Internet-based services, and Embedded Software. The term “Software” also includes all updates, upgrades, modifications, add-on components, and any Internet-based components, delivered by Botron to Licensee under the terms of this EULA.
“User License” means a license granted under this EULA to Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to Licensee is dependent upon the License Fees paid by Licensee.
2. GRANT OF LICENSE
Upon Licensee’s acceptance of the terms of this EULA, BOTRON grants Licensee one of the following licenses to use the Software:
2.1 Commercial License
If Licensee purchases a full license from BOTRON or an Authorized Reseller, BOTRON grants to Licensee a perpetual, non-exclusive, worldwide, non-transferable license to use the Software for commercial purposes with up to the maximum number of concurrent Authorized Users purchased by Licensee (a “Full License”). Licensee may purchase additional User Licenses at any time upon payment of the appropriate license fees to BOTRON or an Authorized Reseller.
2.2 Evaluation License
If Licensee receives an evaluation copy of the Software from BOTRON, BOTRON grants to Licensee a non-exclusive, non-transferable, limited license to download, install, use and operate the Software on a single Jira server (the “Jira Server”) for a limited time period (“Evaluation Period”), and by a limited number of temporary users only, specified by BOTRON in its sole discretion (an “Evaluation License”). Upon the expiration of the Evaluation Period, the license to the Software will terminate for use on such a Jira Server and Licensee must remove and delete all copies of the Software in its possession unless it purchases a Commercial License from BOTRON or an Authorized Reseller. To be valid, trial licenses (a) must be generated by the company that holds the license to the Jira server; (b) must be installed on a physical or virtual server owned or leased by Licensee; and (c) must not be used for any commercial or business purposes other than to evaluate the software; and (d) must not be used with more than 3 Evaluation Licenses per a single Jira server.
Licensee must pay all License Fees by their due date and in the manner directed at the time of purchase of the Software. Failure to pay License Fees by their due date will result in the immediate termination of the licenses granted to Licensee under Section 2 of this EULA.
4. RESERVATION OF RIGHTS AND OWNERSHIP
BOTRON reserves all rights not expressly granted to Licensee in this EULA. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. BOTRON or its third party suppliers own the title, copyright, and all other intellectual property rights of the Software. The Software is licensed, not sold, and the Licensee does not acquire any rights of ownership of the Software under this EULA.
5. LICENSEE OBLIGATIONS
Licensee must at all times: (a) ensure that only an Authorized User uses the Software and only in accordance with the terms and conditions of this EULA; and (b) ensure that the Software is not used for rental, timesharing, subscription services, hosting or outsourcing services. Licensee must not, without the prior written consent of BOTRON: (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 Licensee which is provided to Licensee through the Software to a person who is not an Authorized User; (d) vary or amend the Software (including any Embedded Software, Protected Code or Accessible Code); (e) publish, promote, broadcast, circulate or refer publicly to the BOTRON name, trade name, trademark, service mark or logo; (f) commit any act or omission of the likely result of which BOTRON’s or any of its third party suppliers’ reputation will be brought into disrepute or which could reasonably be expected to have or does have a material and adverse effect on BOTRON’s interests; (g) distribute the Software using OEM Distribution without entering into a separate OEM Distribution Agreement with BOTRON; or (h) copy or embed elements of the Accessible Code contained in the Software into other software. The Software may include license protection mechanisms that are designed to manage and protect the intellectual property rights of BOTRON and its third party suppliers. Licensee must not modify or alter those features to try to defeat the license protection mechanisms. Any such attempt by Licensee will result in the immediate termination of all licenses granted under Section 2 of this EULA.
6. NOTIFICATION OF BREACH
If Licensee discovers it has breached any of its obligations under this EULA, including but not limited to its obligations set forth in Section 6, Licensee must immediately report such breach to BOTRON in writing. Where a breach involves the distribution or use of Software outside of the terms of the applicable license set forth in Section 2, the User License and/or any Additional User License (including but not limited to the use and distribution of Embedded Software), BOTRON and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that BOTRON or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other License Fees payable by Licensee under this EULA, a fee calculated as follows: (a) the number of prohibited distributions or uses multiplied by (b) the respective list prices that BOTRON and/or any third party owner of Embedded Software charges for the Software or the Embedded Software, as the case may be.
7. INVESTIGATION OF UNAUTHORIZED USE AND DISTRIBUTION
If BOTRON reasonably suspects that (a) the Software has been distributed to, or obtained by, any person or party without BOTRON’s prior written consent; (b) the Embedded Software is being varied or accessed or used independently of the Software; or (c) Licensee is otherwise breaching a term of this EULA, then BOTRON reserves the right to require Licensee to provide an unqualified certificate executed by Licensee’s auditor verifying compliance with the terms of this EULA. If such an unqualified certificate is not received by BOTRON within ninety (90) calendar days of being requested by BOTRON, a breach of this EULA will be deemed to have occurred and BOTRON shall have the right to immediately terminate the licenses granted under Section 2 of this EULA.
8. TERM AND TERMINATION
This EULA is effective as of the delivery or download of the Software by Licensee and expires at such time as all licenses hereunder have expired in accordance with their own terms (the “Term”). For clarification, the Term of Licensee’s license under this EULA may be perpetual for a Full License, limited for an Evaluation License or Beta License, or one-year-long for a Free License. Either party may terminate this EULA if the other party: (a) fails to cure any material breach of this EULA within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Notwithstanding the foregoing, BOTRON may terminate this EULA immediately upon any breach by Licensee of the licenses granted in Section 2 or failure by Licensee to pay any License Fees due hereunder. Termination is not an exclusive remedy and the exercise by either party of any remedy under this EULA will be without prejudice to any other remedies it may have under this EULA, by law, or otherwise. Immediately upon termination of a license granted under this EULA, Licensee must at its own cost: (a) cease permitting access to and require that all Authorized Users immediately cease all use of the Software; (b) remove all copies of the Software from its computer systems; (c) provide BOTRON with written confirmation that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
If the Software becomes, or in the opinion of BOTRON may become, the subject of a claim of infringement of any third party’s intellectual property rights, BOTRON 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 paid by Licensee for the Software. The foregoing states the sole liability of BOTRON, and the exclusive remedy of Licensee, for infringement of the third party intellectual property rights under this EULA. Licensee will indemnify and hold harmless BOTRON against all costs, expenses, losses and claims made against BOTRON as a result of any infringement of a third party’s intellectual property rights arising from Licensee’s or any of its Authorized Users’ unauthorized use of the Software under this EULA or any modifications to the Software made by or on behalf of Licensee.
10. THIRD PARTY PRODUCTS
Licensee acknowledges and agrees that if Licensee breaches this EULA and BOTRON or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, BOTRON or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.
11. EXCLUSION OF WARRANTIES
To the maximum extent permitted by applicable law in the jurisdiction in which the Software is supplied or Maintenance SERVICES ARE provided, BOTRON and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BOTRON, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BOTRON PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL A COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO (A) LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE; (B) ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; AND (C) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO LICENSEE.
13. PUBLICITY RIGHTS
Licensee grants BOTRON the right to include Licensee as a customer in Software promotional materials, including Licensee’s logo. Licensee can deny BOTRON this right at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process.
This EULA may not be amended, in whole or in part, without the prior written consent of BOTRON.
This EULA will bind and inure to the benefit of each party’s permitted successors and assignees. BOTRON may assign its rights and obligations under this EULA without the consent of Licensee. Licensee may not assign or transfer this EULA, in whole or in part, without BOTRON’s written consent except that Licensee may assign its rights and obligations under this EULA, in whole but not in part, without BOTRON’s written consent in connection with any merger, consolidation, sale of all or substantially all of its assets, or any other similar transaction provided that: (i) the assignee is not a direct competitor of BOTRON; (ii) Licensee provides prompt written notice of such assignment to BOTRON; (iii) the assignee is capable of fully performing Licensee’s obligations under this EULA; and (iv) the assignee agrees to be bound by the terms and conditions of this EULA. Any attempt to transfer or assign this EULA without such written consent will be null and void.
The export of the Software from the country of original purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorization. Licensee agrees not to, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule or regulation. Licensee shall comply with all of the applicable governmental laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software available in such jurisdiction or country.
17. GOVERNING LAW
This EULA shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this EULA or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
18. INJUNCTIVE RELIEF
The parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, or other order of similar import, including obtaining full payment of all fees and costs under this EULA.
All notices given to BOTRON must be given to Botron Software Solutions, Ltd., 2 Nikolay Haytov Str., Building B, Office B16, Sofia 1113, Bulgaria, and to Licensee at the email or physical address provided by it when downloading or purchasing 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 a 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.
If BOTRON fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if BOTRON fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve Licensee from compliance with such obligations. A waiver by BOTRON of any default shall not constitute a waiver of any subsequent default. No waiver by BOTRON 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.
If any provision of the EULA (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.
22. NO PARTNERSHIP
Nothing in the EULA 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 authorize any party to make or enter into any commitments for or on behalf of any other party.
23. RULES OF INTERPRETATION
In this EULA, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a party includes its personal representatives, successors or permitted assignees. The headings in this EULA are inserted for convenience only and shall not affect its construction.
A reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to one gender includes a reference to the other gender.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
Sections 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 19, and 20 shall survive any termination of this EULA.