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Cloud Terms of Service
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Data Transfer Impact Assessment
User Notice
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Impressum
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ATLASSIAN CLOUD TERMS OF SERVICE
Effective starting: August 6, 2019
Thanks for using Atlassian’s Cloud Products! These Atlassian Cloud Terms of
Service (these “Terms”) describe your rights and responsibilities as a customer
of our Cloud Products. As applicable to the specific Cloud Product, if you are
being invited or added to a Cloud Product set up by an Atlassian customer,
the User Notice governs your access and use of the Cloud Product (and not these
Terms). These Terms are between you and the Atlassian entity that owns or
operates the Cloud Product that you are using or accessing listed
here (“Atlassian”, “we” or “us”). “You” means the entity you represent in
accepting these Terms or, if that does not apply, you individually. If you are
accepting on behalf of your employer or another entity, you represent and
warrant that: (i) you have full legal authority to bind your employer or such
entity to these Terms; (ii) you have read and understand these Terms; and (iii)
you agree to these Terms on behalf of the party that you represent. If you don’t
have the legal authority to bind your employer or the applicable entity please
do not click “I agree” (or similar button or checkbox) that is presented to
you. PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT USING AN EMAIL ADDRESS
FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT
SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO
THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER
OR THAT ENTITY.
These Terms are effective as of the date you first click “I agree” (or similar
button or checkbox) or use or access a Cloud Product, whichever is earlier (the
“Effective Date”). These Terms do not have to be signed in order to be binding.
You indicate your assent to these Terms by clicking “I agree” (or similar button
or checkbox) at the time you register for a Cloud Product, create a Cloud
Product account, or place an Order. For No-Charge Products, you also indicate
your assent to these Terms by accessing or using the applicable No-Charge
Product.
1. What these Terms cover.
1.1. Cloud Products. These Terms govern our Cloud Products, related Support, and
Additional Services. These Terms include Our Policies (including our Privacy
Policy), the Product-Specific Terms, and your Orders.
1.2. Product-Specific Terms. Some Cloud Products may be subject to additional
terms specific to that product as set forth in the Product-Specific Terms. By
accessing or using a product covered by the Product-Specific Terms, you also
agree to the Product-Specific Terms.
1.3. Expanded Coverage Addendum. Certain qualifying Cloud Products are also
subject to the Expanded Coverage Addendum, as specified in such terms.
1.4. Software Products Not Covered. These Terms do not apply to our downloadable
software products (currently designated as “Server” and “Data Center”
deployments), use of which requires a separate license agreement with us. For
clarity, however, any client software (e.g., a desktop or mobile application) we
provide as part of the Cloud Products themselves remains subject to these Terms.
2. How Cloud Products are administered.
2.1. Administrators. Through the Cloud Products, you may be able to specify
certain End Users as Administrators, who will have important rights and controls
over your use of Cloud Products and End User Accounts. This may include making
Orders for Cloud Products or enabling Apps (which may incur fees); creating,
de-provisioning, monitoring or modifying End User Accounts, and setting End User
usage permissions; and managing access to Your Data by End Users or others.
Administrators may also take over management of accounts previously registered
using an email address belonging to your domain (which become “managed
accounts”, as described in our Documentation). Without limiting Section 2.4
(Responsibility for End Users), which fully applies to Administrators, you are
responsible for whom you allow to become Administrators and any actions they
take, including as described above. You agree that our responsibilities do not
extend to the internal management or administration of the Cloud Products for
you.
2.2. Reseller as Administrator. If you order Cloud Products through a Reseller,
then you are responsible for determining whether the Reseller may serve as an
Administrator and for any related rights or obligations in your applicable
agreement with the Reseller. As between you and Atlassian, you are solely
responsible for any access by Reseller to your accounts or your other End User
Accounts.
2.3. End User Consent. You will provide all required disclosures to and will
obtain and maintain all required consents from End Users to allow: (i)
Administrators to have the access described in these Terms and the Privacy
Policy; and (ii) Atlassian’s provision of the Cloud Products to Administrators
and End Users. You will provide evidence of such consents upon our reasonable
request.
2.4. Responsibility for End Users. Our Cloud Products have various user
onboarding flows. Some Cloud Products require users to be designated by
Administrators; some allow users to sign up for individual accounts which can
become associated with teams or organizations at a later time; and some may
allow users to invite other users. You are responsible for understanding the
settings and controls for each Cloud Product you use and for controlling whom
you allow to become an End User. If payment is required for End Users to use or
access a Cloud Product, then we are only required to provide the Cloud Products
to those End Users for whom you have paid the applicable fees, and only such End
Users are permitted to access and use the Cloud Products. Some Cloud Products
may allow you to designate different types of End Users (for example, Jira
Service Management distinguishes between “agents” and “customers”), in which
case pricing and functionality may vary according to the type of End User. You
are responsible for compliance with these Terms by all End Users, including for
any payment obligations. Please note that you are responsible for the activities
of all your End Users, including Orders they may place and how End Users use
Your Data, even if those End Users are not from your organization or domain. We
may display our User Notice to End Users at sign up, account creation, Cloud
Product registration, or in-product. If you use single sign-on (SSO) for
identity management of your Cloud Product(s) such that End Users will bypass
these screens and our User Notice, you are responsible for displaying our User
Notice to End Users and for any damages resulting from your failure to do so.
2.5. Credentials. You must require that all End Users keep their user IDs and
passwords for the Cloud Products strictly confidential and do not share such
information with any unauthorized person. User IDs are granted to individual,
named persons and may not be shared. You are responsible for any and all actions
taken using End User Accounts and passwords, and you agree to immediately notify
us of any unauthorized use of which you become aware.
2.6. Age Requirement for End Users. The Cloud Products are not intended for, and
should not be used by, anyone under the age of 16. You are responsible for
ensuring that all End Users are at least 16 years old.
2.7. Domain Name Ownership. Where you are required to specify a domain for the
operation of a Cloud Product or certain Cloud Product features, we may verify
that you own or control that domain. If you do not own or control the domain you
specify, then we will have no obligation to provide you with the Cloud Product
or Cloud Product features.
3. What's included in your Cloud Product subscriptions; what are the
restrictions.
3.1. Access to Cloud Products. Subject to these Terms and during the applicable
Subscription Term, you may access and use the Cloud Products for your own
business purposes or personal use, as applicable, all in accordance with these
Terms, the applicable Order and the Documentation. This includes the right, as
part of your authorized use of the Cloud Products, to download and use the
client software associated with the Cloud Products. The rights granted to you in
this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support. During the Subscription Term, we will provide Support for the
Cloud Products in accordance with the Support Policy, Enterprise Support and
Services Policy (to the extent applicable), and the applicable Order.
3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you
will not: (a) reproduce, modify, adapt or create derivative works of the Cloud
Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide
access to the Cloud Products to a third party; (c) use the Cloud Products for
the benefit of any third party; (d) incorporate any Cloud Products into a
product or service you provide to a third party; (e) interfere with or otherwise
circumvent mechanisms in the Cloud Products intended to limit your use; (f)
reverse engineer, disassemble, decompile, translate or otherwise seek to obtain
or derive the source code, underlying ideas, algorithms, file formats or
non-public APIs to any Cloud Products, except to the extent expressly permitted
by applicable law (and then only upon advance notice to us); (g) remove or
obscure any proprietary or other notices contained in any Cloud Product; (h) use
the Cloud Products for competitive analysis or to build competitive products;
(i) publicly disseminate information regarding the performance of the Cloud
Products; or (j) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1. Security and Certifications. We implement and maintain physical, technical
and administrative security measures designed to protect Your Data from
unauthorized access, destruction, use, modification, or disclosure. We also
maintain a compliance program that includes independent third-party audits and
certifications. Our Trust Center, as updated from time to time, provides further
details on our security measures and certifications.
4.2. Privacy. We collect certain data and information about you and your End
Users in connection with your and your End Users’ use of the Cloud Products and
otherwise in connection with these Terms. We collect and use all such data and
information in accordance with our Privacy Policy, which you acknowledge.
4.3. Improving Cloud Products. We are always striving to improve the Cloud
Products. In order to do so, we use analytics techniques to better understand
how our Cloud Products are being used. For more information on these techniques
and the type of data collected, please read our Privacy Policy.
4.4. Subpoenas. Nothing in these Terms prevents us from disclosing Your Data to
the extent required by law, subpoenas or court orders, but we will use
commercially reasonable efforts to notify you where permitted to do so.
Atlassian strives to balance your privacy rights with other legal requirements;
to read more about Atlassian’s policies and guidelines for law enforcement
officials requesting access to customer data, please see our Guidelines for Law
Enforcement Requests.
4.5. GDPR Data Processing Addendum. If you are in the EEAU, Switzerland, or are
otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General
Data Protection Regulation) or any successor legislation, you can request and
complete the Atlassian Data Processing Addendum here.
5. Terms that apply to Your Data.
5.1. Using Your Data to provide Cloud Products to You. You retain all right,
title and interest in and to Your Data in the form submitted to the Cloud
Products. Subject to these Terms, and solely to the extent necessary to provide
the Cloud Products to you, you grant us a worldwide, limited term license to
access, use, process, copy, distribute, perform, export, and display Your Data.
Solely to the extent that reformatting Your Data for display in a Cloud Product
constitutes a modification or derivative work, the foregoing license also
includes the right to make modifications and derivative works. We may also
access your accounts, End User Accounts, and your Cloud Products with End User
permission in order to respond to your support requests.
5.2. Your Data Compliance Obligations. You and your use of Cloud Products
(including use by your End Users) must comply at all times with these Terms,
the Acceptable Use Policy and all Laws. You represent and warrant that: (i) you
have obtained all necessary rights, releases and permissions to submit all Your
Data to the Cloud Products and to grant the rights granted to us in these Terms
and (ii) Your Data and its submission and use as you authorize in these Terms
will not violate (1) any Laws, (2) any third-party intellectual property,
privacy, publicity or other rights, or (3) any of your or third-party policies
or terms governing Your Data. Other than our express obligations under Section 4
(Our security and data privacy policies), we assume no responsibility or
liability for Your Data, and you are solely responsible for Your Data and the
consequences of submitting and using it with the Cloud Products.
5.3. No Prohibited Sensitive Personal Information. You will not submit to the
Cloud Products (or use the Cloud Products to collect) any Sensitive Personal
Information unless its processing is expressly supported as a feature of the
applicable Cloud Product in the applicable Documentation. Notwithstanding any
other provision to the contrary, we have no liability under these Terms for
Sensitive Personal Information submitted in violation of the foregoing.
5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our
Affiliates, officers, directors, agents and employees) from and against any and
all claims, costs, damages, losses, liabilities and expenses (including
reasonable attorneys’ fees and costs) resulting from any claim arising from or
related to (i) your breach of Section 2.3 (End User Consent) or any claims or
disputes brought by your End Users arising out of their use of Cloud Products,
(ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance
Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii)
Your Materials. This indemnification obligation is subject to you receiving (a)
prompt written notice of such claim (but in any event notice in sufficient time
for you to respond without prejudice); (b) the exclusive right to control and
direct the investigation, defense or settlement of such claim and (c) all
reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension. We have no obligation to monitor any content
uploaded to the Cloud Products. Nonetheless, if we deem such action necessary
based on your violation of these Terms, including Our Policies, or in response
to takedown requests that we receive following our guidelines for Reporting
Copyright and Trademark Violations, we may (1) remove Your Data from the Cloud
Products or (2) suspend your access to the Cloud Products. We will use
reasonable efforts to provide you with advance notice of removals and
suspensions when practicable, but if we determine that your actions endanger the
operation of the Cloud Product or other users, we may suspend your access or
remove Your Data immediately without notice. We have no liability to you for
removing or deleting Your Data from or suspending your access to any Cloud
Products as described in this Section 5.5.
6. Using third-party products with the Cloud Products.
6.1. Third-Party Products. You (including your End Users) may choose to use or
procure other third party products or services in connection with the Cloud
Products, including Third Party Apps (see Section 6.2 (Marketplace Apps)) or
implementation, customization, training or other services. Your receipt or use
of any third party products or services (and the third parties’ use of any of
Your Data) is subject to a separate agreement between you and the third party
provider. If you enable or use third party products or services with the Cloud
Products (including Third Party Apps as referenced in Section 6.2 (Marketplace
Apps)), we will allow the third party providers to access or use Your Data as
required for the interoperation of their products and services with the Cloud
Products. This may include transmitting, transferring, modifying or deleting
Your Data, or storing Your Data on systems belonging to the third party
providers or other third parties. Any third party provider’s use of Your Data is
subject to the applicable agreement between you and such third party provider.
We are not responsible for any access to or use of Your Data by third party
providers or their products or services, or for the security or privacy
practices of any third party provider or its products or services. You are
solely responsible for your decision to permit any third party provider or third
party product or service to use Your Data. It is your responsibility to
carefully review the agreement between you and the third party provider, as
provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND
RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT,
AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD
PARTY PROVIDERS OR VENDORS.
6.2. Marketplace Apps. As further described in the Atlassian Marketplace Terms
of Use, the Atlassian Marketplace lists a variety of Apps that may be used with
Cloud Products, including both Atlassian Apps and Third Party Apps. Atlassian
Apps for Cloud Products are considered “Cloud Products” under these Terms
(unless we specify otherwise through the Atlassian Marketplace). Third Party
Apps are not Cloud Products and remain subject to their own applicable Vendor
Terms. We may enable interoperation of the Cloud Products with Third Party Apps
as set forth in Section 6.1 (Third-Party Products). The terms “Apps”, “Atlassian
Apps”, “Third Party Apps”, “Vendor” and “Vendor Terms” are defined in the
Atlassian Marketplace Terms of Use, which is a separate agreement governing use
of the Atlassian Marketplace.
7. Using Atlassian developer assets. Access to any of our APIs, SDKs or other
Atlassian developer assets is subject to the Atlassian Developer Terms, which is
a separate agreement.
8. Additional Services.
8.1. Additional Services. Subject to these Terms, you may purchase Additional
Services that we will provide to you pursuant to the applicable Order.
Additional Services may be subject to additional policies and terms as specified
by us, including the Enterprise Support and Services Policy.
8.2. Our Deliverables. We will retain all right, title and interest in and to
Our Deliverables. You may use any of Our Deliverables provided to you only in
connection with the Cloud Products, subject to the same usage rights and
restrictions as for the Cloud Products. For clarity, Our Deliverables are not
considered Cloud Products, and any Cloud Products are not considered to be Our
Deliverables.
8.3. Your Materials. You agree to provide us with reasonable access to Your
Materials as reasonably necessary for our provision of Additional Services. If
you do not provide us with timely access to Your Materials, our performance of
Additional Services will be excused until you do so. You retain your rights in
Your Materials, subject to our ownership of any Cloud Products, any of Our
Deliverables or any of Our Technology underlying Your Materials. We will use
Your Materials solely for purposes of performing the Additional Services. You
represent and warrant that you have all necessary rights in Your Materials to
provide them to us for such purposes.
8.4. Training Not Covered. Your purchase, and our provision, of Training is
subject to our Training Terms and Policies, which is a separate agreement.
9. Billing, renewals, and payment.
9.1. Monthly and Annual Plans. Except for No-Charge Products, all Cloud Products
are offered either on a monthly subscription basis or an annual subscription
basis.
9.2. Renewals. Except as otherwise specified in your Order, unless either party
cancels your subscription prior to expiration of the current Subscription Term,
your subscription will automatically renew for another Subscription Term of a
period equal to your initial Subscription Term. You will provide any notice of
non-renewal through the means we designate, which may include account settings
in the Cloud Products or contacting our support team. Cancelling your
subscription means that you will not be charged for the next billing cycle, but
you will not receive any refunds or credits for amounts that have already been
charged. All renewals are subject to the applicable Cloud Product continuing to
be offered and will be charged at the then-current rates.
9.3. Adding Users. You may add users, increase storage limits, or otherwise
increase your use of Cloud Products by placing a new Order or modifying an
existing Order. Unless otherwise specified in the applicable Order, we will
charge you for any increased use at our then-current rates, prorated for the
remainder of the then-current Subscription Term.
9.4. Payment. You will pay all fees in accordance with each Order, by the due
dates and in the currency specified in the Order. If a PO number is required in
order for an invoice to be paid, then you must provide such PO number to
Atlassian by emailing the PO number to sales@atlassian.com. For Additional
Services provided at any non-Atlassian location, unless otherwise specified in
your Order, you will reimburse us for our pre-approved travel, lodging and meal
expenses, which we may charge as incurred. Other than as expressly set forth in
Section 10 (Our return policy), 18.3 (Warranty Remedy), Section 20 (IP
Indemnification) or Section 24 (Changes to these Terms), all amounts are
non-refundable, non-cancelable and non-creditable. You agree that we may bill
your credit card or other payment method for renewals, additional users,
overages to set limits or scopes of use, expenses, and unpaid fees, as
applicable.
9.5. Delivery. We will deliver the login instructions for Cloud Products to
your account or through other reasonable means no later than when we have
received payment of the applicable fees. You are responsible for accessing your
account to determine that we have received payment and that your Order has been
processed. All deliveries under these Terms will be electronic.
10. Our return policy. As part of our commitment to customer satisfaction and
without limiting the Performance Warranty in Section 18 (Warranties and
Disclaimer), you may terminate your initial Order of a Cloud Product under these
Terms, for no reason or any reason, by providing notice of termination to us no
later than thirty (30) days after the Order date for such Cloud Product. In the
event you terminate your initial Order under this Section 10, at your request
(which may be made through your account with us), we will refund you the amount
paid under such Order. This termination and refund right applies only to your
initial Order of the Cloud Product and only if you exercise your termination
right within the period specified above, and does not apply to Additional
Services. You understand that we may change this practice in the future in
accordance with Section 24 (Changes to these Terms).
11. Taxes not included.
11.1. Taxes. Your fees under these Terms exclude any taxes or duties payable in
respect of the Cloud Products in the jurisdiction where the payment is either
made or received. To the extent that any such taxes or duties are payable by us,
you must pay to us the amount of such taxes or duties in addition to any fees
owed under these Terms. Notwithstanding the foregoing, if you have obtained an
exemption from relevant taxes or duties as of the time such taxes or duties are
levied or assessed, you may provide us with such exemption information, and we
will use reasonable efforts to provide you with invoicing documents designed to
enable you to obtain a refund or credit from the relevant revenue authority, if
such a refund or credit is available.
11.2. Withholding Taxes. You will pay all fees net of any applicable withholding
taxes. You and we will work together to avoid any withholding tax if exemptions,
or a reduced treaty withholding rate, are available. If we qualify for a tax
exemption, or a reduced treaty withholding rate, we will provide you with
reasonable documentary proof. You will provide us reasonable evidence that you
have paid the relevant authority for the sum withheld or deducted.
12. If you purchased through a Reseller. If you make any purchases through
an authorized partner or reseller of Atlassian (“Reseller”):
(a) Instead of paying us, you will pay the applicable amounts to the Reseller,
as agreed between you and the Reseller. We may suspend or terminate your rights
to use Cloud Products if we do not receive the corresponding payment from the
Reseller.
(b) Your order details (e.g., the Cloud Products you are entitled to use, the
number of End Users, the Subscription Term, etc.) will be as stated in the Order
placed with us by the Reseller on your behalf, and Reseller is responsible for
the accuracy of any such Order as communicated to us.
(c) If you are entitled to a refund under these Terms, then unless we otherwise
specify, we will refund any applicable fees to the Reseller and the Reseller
will be solely responsible for refunding the appropriate amounts to you.
(d) Resellers are not authorized to modify these Terms or make any promises or
commitments on our behalf, and we are not bound by any obligations to you other
than as set forth in these Terms.
(e) The amount paid or payable by the Reseller to us for your use of the
applicable Cloud Product under these Terms will be deemed the amount actually
paid or payable by you to us under these Terms for purposes of calculating the
liability cap in Section 19.2.
13. No contingencies on other products of future functionality. You acknowledge
that the Cloud Products and Additional Services referenced in an Order are being
purchased separately from any of our other products or services. Payment
obligations for any products or services are not contingent on the purchase or
use of any of our other products (and for clarity, any purchases of Cloud
Products and Additional Services are separate and not contingent on each other,
even if listed on the same Order). You agree that your purchases are not
contingent on the delivery of any future functionality or features (including
future availability of any Cloud Products beyond the current Subscription Term),
or dependent on any oral or written public comments we make regarding future
functionality or features.
14. Evaluations, trials, and betas. We may offer certain Cloud Products
(including some Atlassian Apps) to you at no charge, including free accounts,
trial use and Beta Versions as defined below (collectively, “No-Charge
Products”). Your use of No-Charge Products is subject to any additional terms
that we specify and is only permitted during the Subscription Term we designate
(or, if not designated, until terminated in accordance with these Terms). Except
as otherwise set forth in this Section 14, the terms and conditions of these
Terms governing Cloud Products, including Section 3.3 (Restrictions), fully
apply to No-Charge Products. We may modify or 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 Cloud
Products, and any pre-release and beta features within generally available Cloud
Products, that we make available (collectively, “Beta Versions”) are still under
development, may be inoperable or incomplete and are likely to contain more
errors and bugs than generally available Cloud 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 14.
All information regarding the characteristics, features or performance of any
No-Charge Products (including Beta Versions) constitutes our 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, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN
THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE
PRODUCTS WILL BE US$100.
15. IP Rights in the Cloud Products and Feedback. Cloud Products are made
available on a limited access basis, and no ownership right is conveyed to you,
irrespective of the use of terms such as “purchase” or “sale”. We and our
licensors have and retain all right, title and interest, including all
intellectual property rights, in and to Our Technology (including the Cloud
Products). From time to time, you may choose to submit Feedback to us. We may in
connection with any of our 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 these Terms limits our right to independently use, develop, evaluate,
or market products or services, whether incorporating Feedback or otherwise.
16. Confidentiality. Except as otherwise set forth in these Terms, each party
agrees that all code, inventions, know-how and 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 or should be reasonably known by the
Receiving Party to be confidential or proprietary due to the nature of the
information disclosed and the circumstances surrounding the disclosure. Any of
Our Technology and any performance information relating to the Cloud Products
will be deemed our Confidential Information without any marking or further
designation. Except as expressly authorized herein, the Receiving Party will (1)
hold in confidence and not disclose any Confidential Information to third
parties and (2) not use Confidential Information for any purpose other than
fulfilling its obligations and exercising its rights under these Terms. The
Receiving Party may disclose Confidential Information to its employees, agents,
contractors and other representatives having a legitimate need to know, provided
that they are bound to confidentiality obligations no less protective of the
Disclosing Party than this Section 16 and that the Receiving Party remains
responsible for compliance by them with the terms of this Section 16. The
Receiving Party's confidentiality obligations will not apply to information
which the Receiving Party can document: (i) was rightfully in its possession or
known to it prior to receipt of the Confidential Information; (ii) is or has
become public knowledge through no fault of the Receiving Party; (iii) is
rightfully obtained by the Receiving Party from a third party without breach of
any confidentiality obligation; or (iv) is independently developed by employees
of the Receiving Party who had no access to such information. The Receiving
Party may also disclose Confidential Information if so required pursuant to a
regulation, law or court order (but only to the minimum extent required to
comply with such regulation or order and with advance notice to the Disclosing
Party). The Receiving Party acknowledges that disclosure of Confidential
Information would cause substantial harm for which damages alone would not be a
sufficient remedy, and therefore that upon any such disclosure by the Receiving
Party the Disclosing Party will be entitled to appropriate equitable relief in
addition to whatever other remedies it might have at law.
17. Term and Termination.
17.1. Term. These Terms are effective as of the Effective Date and expire on the
date of expiration or termination of all Subscription Terms.
17.2. Termination for Cause. Either party may terminate these Terms (including
all related Orders) if the other party (a) fails to cure any material breach of
these Terms within thirty (30) days after notice; (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 that party (and not dismissed within sixty
(60) days thereafter).
17.3. Termination for Convenience. You may choose to stop using the Cloud
Products and terminate these Terms (including all Orders) at any time for any
reason upon written notice to us, but, unless you are exercising your right to
terminate early pursuant to Section 10 (Our return policy), upon any such
termination (i) you will not be entitled to a refund of any pre-paid fees and
(ii) if you have not already paid all applicable fees for the then-current
Subscription Term or related services period (as applicable), any such fees that
are outstanding will become immediately due and payable.
17.4. Effects of Termination. Upon any expiration or termination of these Terms,
you must cease using all Cloud Products and delete (or at our request, return)
all Confidential Information or other materials of ours in your possession,
including on any third-party systems operated on your behalf. You will certify
such deletion upon our request. You will not have access to Your Data (and we
may delete all of Your Data unless legally prohibited) after expiration or
termination of these Terms (or its applicable Subscription Term), so you should
make sure to export Your Data using the functionality of the Cloud Products
during the applicable Subscription Term. If you terminate these Terms in
accordance with Section 17.2 (Termination for Cause), we will refund you any
prepaid fees covering the remainder of the then-current Subscription Term after
the effective date of termination. If we terminate these Terms in accordance
with Section 17.2 (Termination for Cause), you will pay any unpaid fees covering
the remainder of the then-current Subscription Term after the effective date of
termination. In no event will termination relieve you of your obligation to pay
any fees payable to us for the period prior to the effective date of
termination. Except where an exclusive remedy may be specified in these Terms,
the exercise by either party of any remedy, including termination, will be
without prejudice to any other remedies it may have under these Terms, by law or
otherwise.
17.5. Survival. The following provisions will survive any termination or
expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity),
6.1 (Third-Party Products), 9.4 (Payment), 11 (Taxes not included), 14
(Evaluations, trials, and betas) (disclaimers and use restrictions only), 15 (IP
Rights in the Cloud Products and Feedback), 16 (Confidentiality), 17 (Term and
Termination), 18.4 (Warranty Disclaimer), 19 (Limitations of Liability), 20 (IP
Indemnification) (but solely with respect to claims arising from your use of
Cloud Products during the Subscription Term), 22 (Dispute Resolution) and 26
(General Provisions).
18 Warranties and Disclaimer.
18.1. Mutual Warranties. Each party represents and warrants that it has the
legal power and authority to enter into these Terms.
18.2. Our Warranties. We warrant, for your benefit only, that we use
commercially reasonable efforts to prevent introduction of viruses, Trojan
horses or similar harmful materials into the Cloud Products (but we are not
responsible for harmful materials submitted by you or End Users) (the
“Performance Warranty”).
18.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge
to you, to correct reported non-conformities with the Performance Warranty. If
we determine corrections to be impracticable, either party may terminate the
applicable Subscription Term. In this case, you will receive a refund of any
fees you have pre-paid for use of the Cloud Product for the terminated portion
of the applicable Subscription Term. The Performance Warranty will not apply:
(i) unless you make a claim within thirty (30) days of the date on which you
first noticed the non-conformity, (ii) if the non-conformity was caused by
misuse, unauthorized modifications or third-party products, software, services
or equipment or (iii) to No-Charge Products. Our sole liability, and your sole
and exclusive remedy, for any breach of the Performance Warranty are set forth
in this Section 18.
18.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 18, ALL
CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND
OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF
ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED
OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT
WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE,
THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN
YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS
NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN,
OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST,
ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT
OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL
ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT
OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT
BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT
IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE
OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF
STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD
PERMITTED BY LAW.
19. Limitation of Liability.
19.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED
BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF
OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST
PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF
DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES
OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
19.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’
AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL
NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN
THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
19.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any
Orders, (2) either party’s express indemnification obligations in these Terms,
and (3) your breach of Section 3.3 (Restrictions) or of Section 2 (Combining the
Products with Open Source Software) of Third Party Code in Atlassian Products.
19.4. Nature of Claims and Failure of Essential Purpose. The parties agree that
the waivers and limitations specified in this Section 19 apply regardless of the
form of action, whether in contract, tort (including negligence), strict
liability or otherwise and will survive and apply even if any limited remedy
specified in these Terms is found to have failed of its essential purpose.
20. IP Indemnification. We will defend you against any claim brought against you
by a third party alleging that the Cloud Products, when used as authorized under
these Terms, infringe any third-party patent, copyright or trademark, or
misappropriates any third-party trade secret enforceable in any jurisdiction
that is a signatory to the Berne Convention (a “Claim”), and we will indemnify
you and hold you harmless against any damages and costs finally awarded on the
Claim by a court of competent jurisdiction or agreed to via settlement executed
by us (including reasonable attorneys’ fees), provided that we have received
from you: (a) prompt written notice of the Claim (but in any event notice in
sufficient time for us to respond without prejudice); (b) reasonable assistance
in the defense and investigation of the Claim, including providing us a copy of
the Claim, all relevant evidence in your possession, custody, or control, and
cooperation with evidentiary discovery, litigation, and trial, including making
witnesses within your employ or control available for testimony; and (c) the
exclusive right to control and direct the investigation, defense, and settlement
(if applicable) of the Claim. If your use of the Cloud Products is (or in your
opinion is likely to be) enjoined, whether by court order or by settlement, or
if we determine such actions are reasonably necessary to avoid material
liability, we may, at our option and in our discretion: (i) procure the right
for your continued use of the Cloud Product in accordance with these Terms; (ii)
substitute a substantially functionally similar Cloud Product; or (iii)
terminate your right to continue using the Cloud Product and refund any prepaid
amounts for the terminated portion of the Subscription Term. Our indemnification
obligations above do not apply: (1) if the total aggregate fees we receive with
respect to your subscription to a Cloud Product in the twelve (12) month period
immediately preceding the Claim is less than US$50,000; (2) if the Cloud Product
is modified by any party other than us, but solely to the extent the alleged
infringement is caused by such modification; (3) if the Cloud Product is used in
combination with any non-Atlassian product, software, service or equipment, but
solely to the extent the alleged infringement is caused by such combination; (4)
to unauthorized use of Cloud Products; (5) to any Claim arising as a result of
(y) Your Data or circumstances covered by your indemnification obligations in
Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components
contained with the Cloud Products or (6) if you settle or make any admissions
with respect to a Claim without our prior written consent. THIS SECTION 20 (IP
INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD
PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
21. Publicity Rights. We may identify you as an Atlassian customer in our
promotional materials. We will promptly stop doing so upon your request sent
to sales@atlassian.com.
22. Dispute Resolution.
22.1. Informal Resolution. In the event of any controversy or claim arising out
of or relating to these Terms, the parties will consult and negotiate with each
other and, recognizing their mutual interests, attempt to reach a solution
satisfactory to both parties. If the parties do not reach settlement within a
period of sixty (60) days, either party may pursue relief as may be available
under these Terms pursuant to Section 22.2 (Governing Law; Jurisdiction). All
negotiations pursuant to this Section 22.1 will be confidential and treated as
compromise and settlement negotiations for purposes of all rules and codes of
evidence of applicable legislation and jurisdictions.
22.2. Governing Law; Jurisdiction. These Terms will be governed by and construed
in accordance with the applicable laws of the State of California, USA, without
giving effect to the principles of that State relating to conflicts of laws.
Each party irrevocably agrees that any legal action, suit or proceeding arising
out of or related to these Terms must be brought solely and exclusively in, and
will be subject to the service of process and other applicable procedural rules
of, the State or Federal court in San Francisco, California, USA, and each party
irrevocably submits to the sole and exclusive personal jurisdiction of the
courts in San Francisco, California, USA, generally and unconditionally, with
respect to any action, suit or proceeding brought by it or against it by the
other party. In any action or proceeding to enforce a party’s rights under these
Terms, the prevailing party will be entitled to recover its reasonable costs and
attorneys’ fees.
22.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section
22.1 (Informal Resolution) and 22.2 (Governing Law; Jurisdiction), nothing in
these Terms will prevent us from seeking injunctive relief with respect to a
violation of intellectual property rights, confidentiality obligations or
enforcement or recognition of any award or order in any appropriate
jurisdiction.
22.4. Exclusion of UN Convention and UCITA. The terms of the United Nations
Convention on Contracts for the Sale of Goods do not apply to these Terms. The
Uniform Computer Information Transactions Act (UCITA) will not apply to these
Terms regardless of when or where adopted.
23. Export Restrictions. The Cloud Products are subject to export restrictions
by the United States government and may be subject to import restrictions by
certain foreign governments, and you agree to comply with all applicable export
and import laws and regulations in your access to, use of, and download of the
Cloud Products (or any part thereof). You shall not (and shall not allow any
third-party to) remove or export from the United States or allow the export or
re-export of any part of the Cloud Products or any direct product thereof: (a)
into (or to a national or resident of) any embargoed or terrorist-supporting
country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity,
or Unverified Lists or the U.S. Treasury Department’s list of Specially
Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited
Persons”); (c) to any country to which such export or re-export is restricted or
prohibited, or as to which the United States government or any agency thereof
requires an export license or other governmental approval at the time of export
or re-export without first obtaining such license or approval; or (d) otherwise
in violation of any export or import restrictions, laws or regulations of any
United States or foreign agency or authority. You represent and warrant that (i)
you are not located in, under the control of, or a national or resident of any
such prohibited country and (ii) none of Your Data is controlled under the U.S.
International Traffic in Arms Regulations or similar Laws in other
jurisdictions. You also certify that you are not a Prohibited Person nor owned,
controlled by, or acting on behalf of a Prohibited Person. You agree not to use
or provide the Cloud Products for any prohibited end use, including to support
any nuclear, chemical, or biological weapons proliferation, or missile
technology, without the prior permission of the United States government.
24. Changes to these Terms. We may modify the terms and conditions of these
Terms (including Our Policies) from time to time, with notice to you in
accordance with Section 26.1 (Notices) or by posting the modified Terms on our
website. Together with notice, we will specify the effective date of the
modifications.
24.1. No-Charge Products. You must accept the modifications to continue using
the No-Charge Products. If you object to the modifications, your exclusive
remedy is to cease using the No-Charge Products.
24.2. Paid Subscriptions. Except as otherwise indicated below, modifications to
these Terms will take effect at the next renewal of your Subscription Term and
will automatically apply as of the renewal date unless you elect not to renew
pursuant to Section 9.2 (Renewals). Notwithstanding the foregoing, in some cases
(e.g., to address compliance with Laws, or as necessary for new features) we may
specify that such modifications become effective during your then-current
Subscription Term. If the effective date of such modifications is during your
then-current Subscription Term and you object to the modifications, then (as
your exclusive remedy) you may terminate your affected Orders upon notice to us,
and we will refund you any fees you have pre-paid for use of the affected Cloud
Products for the terminated portion of the applicable Subscription Term. To
exercise this right, you must provide us with notice of your objection and
termination within thirty (30) days of us providing notice of the modifications.
For the avoidance of doubt, any Order is subject to the version of these Terms
in effect at the time of the Order.
24.3. Our Policies. We may modify Our Policies to take effect during your
then-current Subscription Term in order to respond to changes in our products,
our business, or Laws. In this case, unless required by Laws, we agree not to
make modifications to Our Policies that, considered as a whole, would
substantially diminish our obligations during your then-current Subscription
Term. Modifications to Our Policies will take effect automatically as of the
effective date specified for the updated policies.
25. Changes to the Cloud Products. You acknowledge that the Cloud Products are
on-line, subscription-based products, and that in order to provide improved
customer experience we may make changes to the Cloud Products, and we may update
the applicable Documentation accordingly. Subject to our obligation to provide
Cloud Products and Additional Services under existing Orders, we can discontinue
any Cloud Products, any Additional Services, or any portion or feature of any
Cloud Products for any reason at any time without liability to you.
26. General Provisions.
26.1. Notices. Any notice under these Terms must be given in writing. We may
provide notice to you through your Notification Email Address, your account or
in-product notifications. You agree that any electronic communication will
satisfy any applicable legal communication requirements, including that such
communications be in writing. Any notice to you will be deemed given upon the
first business day after we send it. You will provide notice to us by post to
Atlassian Pty Ltd, c/o Atlassian, Inc., 350 Bush Street, Floor 13, San
Francisco, CA, USA 94104, Attn: General Counsel. Your notices to us will be
deemed given upon receipt.
26.2. Force Majeure. Neither party will be liable to the other for any delay or
failure to perform any obligation under these Terms (except for a failure to pay
fees) if the delay or failure is due to 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.
26.3. Assignment. You may not assign or transfer these Terms without our prior
written consent. As an exception to the foregoing, you may assign these Terms in
their entirety (including all Orders) to your successor resulting from a merger,
acquisition, or sale of all or substantially all of your assets or voting
securities, provided that you provide us with prompt written notice of the
assignment and the assignee agrees in writing to assume all of your obligations
under these Terms. Any attempt by you to transfer or assign these Terms except
as expressly authorized above will be null and void. We may assign our rights
and obligations under these Terms (in whole or in part) without your consent. We
may also permit our Affiliates, agents and contractors to exercise our rights or
perform our obligations under these Terms, in which case we will remain
responsible for their compliance with these Terms. Subject to the foregoing,
these Terms will inure to the parties’ permitted successors and assigns.
26.4. Government End Users. Any United States federal, state, or local
government customers are subject to the Government Amendment in addition to
these Terms.
26.5. Entire Agreement. These Terms are the entire agreement between you and us
relating to the Cloud Products and any other subject matter covered by these
Terms, and supersede all prior or contemporaneous oral or written
communications, proposals and representations between you and us with respect to
the Cloud Products or any other subject matter covered by these Terms. No
provision of any purchase order or other business form employed by you will
supersede or supplement the terms and conditions of these Terms, and any such
document relating to these Terms will be for administrative purposes only and
will have no legal effect.
26.6. Conflicts. In event of any conflict between the main body of these Terms
and either Our Policies or Product-Specific Terms, Our Policies or
Product-Specific Terms (as applicable) will control with respect to their
subject matter.
26.7. Waivers; Modifications. No failure or delay by the injured party to these
Terms in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will 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. Except as set forth in Section 24 (Changes
to these Terms), any amendments or modifications to these Terms must be executed
in writing by an authorized representative of each party.
26.8. Interpretation. As used herein, “including” (and its variants) means
“including without limitation” (and its variants). Headings are for convenience
only. If any provision of these Terms is held to be void, invalid, unenforceable
or illegal, the other provisions will continue in full force and effect.
26.9. Independent Contractors. The parties are independent contractors. These
Terms will 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 either
party the express or implied right, power or authority to create any duty or
obligation of the other party.
27. Definitions. Certain capitalized terms are defined in this Section 27, and
others are defined contextually in these Terms.
“Additional Services” means Technical Account Manager (TAM) services, premier or
priority support or other services related to the Cloud Products we provide to
you, as identified in an Order. For the avoidance of doubt, Additional Services
do not include the standard level of support included in your subscription.
“Administrators” mean the personnel designated by you who administer the Cloud
Products to End Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is
owned or is controlled by or is under common ownership or control with a party,
where “control” means the power to direct the management or affairs of an
entity, and “ownership” means the beneficial ownership of greater than 50% of
the voting equity securities or other equivalent voting interests of the entity.
“Cloud Products” means our hosted or cloud-based solutions (currently designated
as “Cloud” deployments), including any client software we provide as part of the
Cloud Products.
“Documentation” means our standard published documentation for the Cloud
Products, currently located here.
“End User” means an individual you or an Affiliate permits or invites to use the
Cloud Products. For the avoidance of doubt: (a) individuals invited by your End
Users, (b) individuals under managed accounts, and (c) individuals interacting
with a Cloud Product as your customer are also considered End Users.
“End User Account” means an account established by you or an End User to enable
the End User to use or access a Cloud Product.
“Feedback” means comments, questions, ideas, suggestions or other feedback
relating to the Cloud Products, Support or Additional Services.
“HIPAA” means the Health Insurance Portability and Accountability Act, as
amended and supplemented.
“Laws” means all applicable local, state, federal and international laws,
regulations and conventions, including those related to data privacy and data
transfer, international communications and the exportation of technical or
personal data.
“Notification Email Address” means the email address(es) you used to register
for a Cloud Product account or otherwise sign up for a Cloud Product. It is your
responsibility to keep your email address(es) valid and current so that we are
able to send notices, statements, and other information to you.
“Order” means Atlassian’s applicable online order page(s), flows, in-product
screens or other Atlassian-approved ordering document or process describing the
products and services you are ordering from us and, as applicable, their
permitted scope of use. As applicable, the Order will identify: (i) the Cloud
Products, (ii) the number of End Users, Subscription Term, domain(s) associated
with your use of Cloud Products, storage capacity or limits, or other scope of
use parameters and (iii) (for paid Orders) the amount or rate you will be
charged, the billing and renewal terms, applicable currency, and form of
payment. Orders may also include Additional Services and No-Charge Products.
“Our Deliverables” means any materials, deliverables, modifications, derivative
works or developments that we provide in connection with any Additional
Services.
“Our Policies” means our Acceptable Use Policy, guidelines for Reporting
Copyright and Trademark Violations, Online Community Platforms Terms of Use,
Privacy Policy, Support Policy, Enterprise Support and Services Policy, terms
for Third Party Code in Atlassian Products, and (unless specified) any other
policies or terms referenced in these Terms.
“Our Technology” means the Cloud Products (including all No-Charge Products),
Our Deliverables, their “look and feel”, any and all related or underlying
technology and any modifications or derivative works of the foregoing, including
as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“PO” means a purchase order.
“Product-Specific Terms” means additional terms that apply to certain Cloud
Products and Additional Services, currently located here.
“Sensitive Personal Information” means any (i) special categories of personal
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this context, “submit” (and any similar term) includes submitting, uploading,
transmitting or otherwise making available Your Data to or through the Cloud
Products.
“Your Materials” means your materials, systems, personnel or other resources.
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