End-User License Agreement for Atlassian Data Center (General terms and conditions)
Date: 01/2024
Preamble
The following terms (hereinafter as Agreement) apply to the contractual relationship between Seibert Media GmbH, Luisenstraße 37 - 39, 65185 Wiesbaden, Germany (hereinafter: Seibert Media) and the acquirer of the software (hereinafter: Buyer), for the initial license under clause 1 (1) for the Seibert Media Atlassian Apps (hereinafter: Software).
The following terms apply to the contractual relationship between the Vendor and the acquirer of a sub-licence to use the Software (hereinafter: Buyer) on the Atlassian Marketplace (hereinafter: License).
If the Buyer gets access to the Software available on the Atlassian Marketplace via a telecommunications connection and the data generated by the use of the Software and/or the data required for the use of the Software including the respective and necessary licensing of the Software. However, the offer to get access to and license the Software is directed exclusively to legal entities under public law, special legal funds under public law, or entrepreneurs.
This agreement (hereinafter: Agreement) sets out the terms upon which the Software is licenced and may be used by the Buyer. The term “Buyer” also includes its employees, agents, affiliated companies pursuant to § 15 AktG (Aktiengesetz - German Stock Corporation Act) and subcontractors. The terms of this Agreement apply when the Buyer first downloads, installs, or uses the Software, whichever occurs first. The Buyer will require a current and valid Licence key or active subscription to use and continue to use the Products. If the Buyer does not agree to the terms of this Agreement, the Buyer shall not download, install or use the Software or any services related to them.
The software is protected by German copyright law (§§ 69a ff. UrhG). The copyright with regard to the Software is subject to this Agreement. The rights of use concerning the Software are subject to this Agreement.
Any conflicting, deviating or supplementary provisions proposed by the Buyer shall not become part of the contract, unless Seibert Media expressly agrees to their validity in writing.
This preamble and the provisions contained therein are also part of this Agreement.
These terms and conditions do not apply to the software draw.io. The terms and conditions applicable to this can be found here:
https://info.seibert-media.net/pages/viewpage.action?pageId=95846502
1. Object
1.1 This Agreement grants permission to use of the Software and to receive maintenance services that Seibert Media provides for the Software purchased by the Buyer. An overview of the current software that Seibert Media offers can be found at https://marketplace.atlassian.com/vendors/9093 and https://marketplace.atlassian.com/vendors/1210578/seibert-media-draw-io and possibly other vendor accounts.
1.2 This Agreement covers the most current version of the Software from the beginning until the end of the term (see § 5).
1.3 Other services such as installation, instruction, training, customization of the software or any other service are not part of this Agreement. If Seibert Media offers such services, they are to be agreed upon separately in writing.
2. Right of Use, Multiple Use and Use on Networks
2.1 Seibert Media grants the Buyer a non-exclusive, non-transferable licence to use the Software as acquired from an approved source, for the direct benefit of Seibert Media during the term of this Agreement and as set out in Buyers Licence specifically acquired (see § 5) and this EULA (collectively, the “Usage Rights”).
2.2 These Usage Rights may only be exercised by the maximum number of users for whom the Buyer owns an Atlassian core software licence(s) such as Confluence and/or Jira. The Trello power-up is completely free at this point.
2.3 It is prohibited to provide the Software to more users than contractually agreed. A higher user-number package must be purchased if the number of users exceeds the contractually agreed upon number of users. The Buyer agrees to pay the difference through a new transaction in the Atlassian marketplace (upgrade).
2.4 The lease has a standard term of up to 12 months. However, the term may differ if Atlassian and the Atlassian marketplace allow for that. The right of each party to extraordinary termination for good cause shall remain unaffected. Initially, the Buyer is entitled to test the Software free of charge for a period of 30 days. During this period Seibert Media is not obliged to provide any support or maintenance services.
2.5 The Buyer may use the Software on any compatible hardware available to them. If the Buyer changes their hardware, they must delete the Software from where it was installed on their old hardware.
2.6 Seibert Media is neither responsible nor liable for the quality of the necessary hardware and software utilized by the Buyer nor for the telecommunications connection between the Buyer and Seibert Media up to the point of interconnection. Especially for browser software, the Seibert Media requires the Buyer to use current versions of major internet browsers and at least those web browsers required by Atlassian for their core products.
2.7 Simultaneous use in production of more than one piece of hardware is not permitted.
3. Permitted Reuse and Access Restrictions
3.1 The Buyer may reuse the granted Licence for the Software, only where the respective reuse is necessary to allow the contractually agreed-upon use of the Software. Necessary reuse includes in particular the development and testing of systems within the same IP network. For this purpose, multiple developer keys may be generated, insofar as the general provisions of Atlassian for staging, test, and development systems are met.
3.2 The Buyer agrees to take suitable precautions to prevent any unauthorized third-party access to the Software. The Buyer’s Licence key is to be kept in a place secured against any unauthorized access by third parties. The Buyer's employees are required to comply with the present terms of this Agreement as well as with copyright law.
4. Recompilation and Program Modifications
4.1 The recompilation of the software code into other code formats, as well as any other form of reverse engineering of the different production stages of the software, to include any program modification, is permitted for private use only, in particular, to rectify errors. Private use within the meaning of this regulation, limits the use of the software for professional or commercial purposes to the Buyer or their employees, and is not intended to be exploited commercially in any way.
4.2 The Buyer shall only be entitled to decompile the Software within the scope of § 69e UrhG (German Copyright Law) and only if Seibert Media has not provided the necessary data and/or information in writing within a reasonable period of time following a corresponding request to do so in order to establish interoperability with other Software.
4.3 The Buyer is only entitled to make changes and other modifications to the Software within the meaning of § 69c UrhG to the extent that this is unconditionally permitted under the UrhG. Before the Customer itself rectifies defects or instructs a third party to do so, it shall first allow Seibert Media to attempt to rectify the defect.
4.4 Copyright notices and other features used for software identification may not be removed or changed.
5. Term
5.1 The Buyer may choose the term of the Agreement on the Atlassian Marketplace according to the options available there. The term ends automatically after 12 months ("Term") and the License must be ordered again thereafter. The right of each party to extraordinary termination for good cause shall remain unaffected. The Agreement can be terminated by clicking the button "Unsubscribe" for this Software within the administration of the basic Software.
5.2 Initially, the Buyer is entitled to test the Software free of charge for 30 days (subject to change by Atlassian). During this period, Seibert Media is not obliged to provide any support or maintenance services. During this period, Seibert Media's liability is excluded to the extent permitted by law.
6. Resale, Transfer, or Sublicensing
The Buyer may not transfer, sell, rent, lease, sublicence, re-licence or assign the Software in any way. Additionally the Buyer shall not make the Software accessible or install it on the servers of third parties. Reproductions are only permitted if it is essential for any use in compliance with this Agreement.
7. Open Source Software
If Open Source Software is used in Seibert Media’s product, it will not materially or adversely affect the Buyer’s ability to exercise Usage Rights in the Software.
8. Ownership
8.1 The Buyer does not acquire any rights or permissions other than by the licence granted by this Licence to use the Software for the Term, in particular, does not become the owner of marketing materials, any Software or electronic media, intellectual property rights, methodologies, strategies, research, and designs. Seibert Media reserves the right to use in any way it wishes any programming tools, skills, content, methodologies, strategies, and techniques acquired or used in performing its duties under this Licence.
8.2 The ownership of any data content created using the Software shall remain with the author of that content.
9. Maintenance Services
9.1 Seibert Media offers the following services to the Buyer free-of-charge for the software during the term:
- The Buyer will get updates (updates) of the software that are released by //SEIBER/MEDIA;
- Seibert Media shall provide the Buyer with technical support for troubleshooting and error resolution (hereinafter referred to as "Support" or "Support Services") for the software during the support hours referred to in clause 13 (3) via the support channels listed in clause 11;
9.2 Full particulars of these services are set out below in clauses 16, 17, and 18.
10. Duration of Software Maintenance
The Software Maintenance will be provided by Seibert Media as long as the Agreement and the subscription of the Buyer continue.
11. Support Channels
11.1 Seibert Media offers solely the following support channels:
- Publicly accessible documentation at:
http://seibert.biz/documentation
2. Publicly accessible Helpdesk for registering new support tickets at:
https://support.seibert-media.net
3. Email address for registering new support tickets at:
Seibert Media endeavors to be easily available during the support hours set out in paragraph §15.3 below, via email, chat, Atlassian forums, Seibert Media’s forums, social media, and other channels. However, availability is at the discretion of Seibert Media.
11.2 For draw.io products, please contact the following support channels:
- Publicly accessible documentation at:
http://seibert.biz/confluenceuserdocumentation
2. Publicly accessible Helpdesk for registering new support tickets at:
https://drawio-app.com/support
3.Email address for registering new support tickets at:
12. Included Services
12.1 The following support services are exclusively offered by Seibert Media:
- Analysis of errors and investigation of the underlying causes of the reported problems (root cause analysis),
- Support for interoperability problems with other software from the Atlassian Marketplace, and
- if specifically ordered by the customer: Investigation of problems with the software, possibly using remote access (troubleshooting) in presence of the customer (like a remote desktop sharing session).
The limited services as mentioned above comprise the entirety of Seibert Media's obligation to provide support services. Furthermore, Seibert Media is not obliged to provide further services. In particular, Seibert Media is not obliged to provide installation, customization, programming, consulting, and training services. If Seibert Media offers such services, they are to be paid for and agreed upon separately in writing. If additional services are offered for free as a courtesy, this does not imply any obligation for the future. If additional services are offered for free as a courtesy, Seibert Media's liability is excluded to the extent permitted by law.
12.2 Seibert Media takes responsibility for resolving documented, reproducible errors in the software (Software Maintenance) using competent personnel and according to accepted industrial standards. Seibert Media is not responsible for the success of the resolution of errors and gives no guarantee in this respect. For the purposes of this contract, an ‘error’ is a material non-compliance between the functionality of the Software with the Documentation for the Software, reported by the Buyer and which occurs other than by user error.
If a disturbance can not be reproduced, it is not considered an error. The non-compliance has to cause a loss of functionality permanently and significantly. In this case, the parties shall endeavour to reach agreement on the action to be taken.
12.3 Anonymous tracking can help to improve the software. For Linchpin Intranet and Aura, we do use the power of anonymous tracking with an opt-out mechanism:
- Learn more about anonymous tracking in Linchpin here.
- Learn more about anonymous tracking in Aura here.
12.4 Seibert Media is exempted from the obligation to perform support Maintenance for the Buyer without affecting the payment obligation for the agreed purchase price, particularly
- in the event of errors resulting from unauthorized modifications or alterations to the software; (both server-side and client-side);
- if the installation of the current or previous software versions as well as the delivered error solutions were not carried out, unless the delivered versions or error solutions are faulty;
- for Software versions released a period (e.g., more than one month) before the Buyer reported the error. This timeline is dependent on if and how Atlassian allows the Buyer to hold back updates (“Release Track”) for their instances in the Atlassian Cloud.
- in the event of errors due to unauthorized use of the software or incorrect operation, unless the software is used in accordance with the user documentation;
- for software provided by the developer that is:
(1) no longer developed or supported (end-of-life status);
(2) intended to be used for test purposes and is therefore an unfinished version of the software (beta version);
(3) created as a final test version (release candidate);
(4) a development version (development release);
6. for any hardware defects;
7. when the software is used on hardware and operating system environments other than those specified in the user documentation;
8. in the event of disruptions caused by force majeure or similar circumstances;
9. alterations made to the software made by the Buyer in breach of the contract;
10. alterations to the software, performed by technicians outside of Seibert Media without the prior written consent of Seibert Media.
If Seibert Media offers such services, they are to be agreed upon in writing and paid for separately.
12.5 The Buyer shall understand that Seibert Media does not store any application data and thus the Buyer shall undertake adequate data backup measures to ensure that any data to be recovered is stored in a machine-readable format and that the Buyer can recover with minimum effort. Atlassian offers the following guidelines for Atlassian’s Data Center backups.
13. Error Reporting, Obligation to Cooperate, and Support Hours
13.1 The Buyer must immediately report any errors that occur with a detailed description of the problem using the support channels listed in clause 11.
13.2 For the execution of the contractual services, cooperation must be complete and punctual. The obligation to cooperate includes the following items in particular:
- The Buyer must observe applicable laws and regulations. It is prohibited to transfer data or content to Seibert Media servers that violate legal provisions or infringe third-party property rights or copyrights or other rights of third parties.
- When reporting an error, all documentation, log files, and other information relevant to troubleshooting shall be made available without delay;
- Only data free from computer viruses or other harmful code may be transmitted;
- The Buyer may use no software, technologies or procedures in connection with the use of the contractual software that are capable of affecting its operation, security and availability.
13.3 In order to receive error reports, Seibert Media can be reached during support hours on work days between 09:00 and 17:00 (CET/CEST). Work days include Monday to Friday, with the exception of all public holidays in the state of Hessen, Germany, in addition to the following days: 24 December and 31 December.
13.4 Processing of support cases, taking into account the reaction and solution times specified in clauses 15, 15, shall be carried out during the support hours specified in clause 13.3.
14. Error Classification Levels
14.1 In the case of error reports, the processing of the support cases is carried out within the response and resolution times specified in clauses 15, 16. The response and resolution times depend on the classification level; The following error classification levels apply:
- Priority 1: Critical error. The use of the whole or material part of the software is impossible or significantly restricted. A significant limitation exists where the whole or a material part of the software no longer works and no functional workaround can be achieved (“significant limitation”).
- Priority 2: Other disturbances. Any other problems with the software.
14.2 Seibert Media shall strive to handle all support cases on time periods set out below. Priority 1 errors are given priority over priority 2 errors, irrespective of the time they were registered in the support system.
15. Response Time
15.1 Response time is the period between the report of an error and the first action taken by Seibert Media. The period starts with receiving corresponding support request through an official support channel according to clause 11 within the support hours specified in clause 13 (3), and runs exclusively during the agreed support hours. If a message appears outside the agreed support hours, the response time begins with the next support period.
15.2 Seibert Media shall strive for the following response times according to the error level:
- Priority 1: 4 hours
- Priority 2: 8 hours
15.3 The response times are Seibert Media’s declared aspiration. In particular with regard to the provision of clause 14 (2), Seibert Media does not guarantee the observance of the stated response times. Non-compliance with these response times does not constitute any right for the Buyer to reduce the price, claim for reimbursement, terminate the agreement or seek any other form of compensation.
16. Resolution Time
16.1 The resolution time is the maximum time before troubleshooting resolves the error or a workaround is implemented, after the start of work on a support case.
16.2 Seibert Media shall strive for the following resolution times according to the error classification levels:
- Priority 1: 16 hours
- Priority 2: 40 hours
16.3 The response times are Seibert Media's target resolution times over the average of the last 5 incidents of that priority level. Any specific incident resolution time will vary. In particular, regarding the provision of clause 14.2., Seibert Media does not guarantee the observance of the stated average response times. Non-compliance with these response times does not constitute any right for the Buyer to reduce the price, claim for reimbursement, terminate the Agreement, or seek any other form of compensation.
17. Limitation of Liability
Seibert Media shall be liable for damages resulting from this agreement, for whatever actual or legal reasons, under the following regulations:
17.1. In the case of willful intent, gross negligence, claims under the German Product Liability Act, or in the case of a loss of life or personal injury, Seibert Media shall be liable without restriction in accordance with statutory provisions.
17.2. Insofar as Seibert Media culpably infringes an important obligation, the liability per calendar year shall be limited to the foreseeable damage at the time of conclusion of the contract up to a total amount for all damages per calendar year which corresponds to 100% of the purchase price paid by the Buyer in this calendar year, as far as the Buyer can prove the damage. Such a fundamental obligation will always exist, where the obligation is essential for the due and proper implementation of the contract, and on which the Buyer trusted and could reasonably rely. This limitation of liability also applies to data loss and data corruption. An essential contractual obligation in the meaning of this Agreement is any obligation the fulfillment of which necessarily enables the proper performance of the Agreement and the observance of which the other party of the Agreement regularly relies on.
17.3. Liability is excluded in the event of negligent violation of other non-essential contractual obligations and (where appropriate laws authorize) in respect of indirect and/or consequential losses including but not limited to special damage even if Seibert Media was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data.
17.4 Seibert Media will indemnify and hold the Buyer harmless from any claim, suit or proceeding brought against it based on a claim that Seibert Media has infringed or is infringing any third party's trademark, copyright, patent or other intellectual property right in or concerning the software. The maximum damage that Seibert Media is liable for is limited as in clause 17.2.
17.5 Seibert Media shall not be liable for the loss of the Buyer‘s application data insofar as the damage is due to the Buyer failing to carry out data backups, thereby ensuring that the Buyer can restore lost data with reasonable effort.
17.6 The Buyer will indemnify and hold Seibert Media harmless for any claim, suit or proceeding brought against it based on (i) any breach by the Buyer of applicable data protection laws; and/or (ii) any infringement of the intellectual property rights in the Software.
18. Defects
In case of a defect (which is not an ‘error’) of the Software, Seibert Media shall in its discretion remedy the defect immediately or to deliver a replacement free of defects if the Buyer notifies Seibert Media of the defect.
19. Warranty
19.1. Seibert Media guarantees that the Software has the quality as defined in this Agreement during the Term.
19.2. Seibert Media also guarantees that it is entitled to grant the Licence.
19.3. Seibert Media does not accept any additional guarantees. All other conditions, warranties, or other terms which might have effect between the parties or be implied or incorporated into this Licence, whether by statute, common law, or otherwise, are hereby excluded, including the implied conditions, warranties, or other terms as to the satisfactory quality, fitness for purpose or the use of reasonable skill and care.
19.4. Warranty claims shall become statute-barred within one year of the Software being provided by Seibert Media.
20. Quotation for Marketing Purposes
Seibert Media is entitled to use the Buyer's name, including its logo, as a reference for advertising purposes. The Buyer can send an Email to marketing@seibert-media.net at any time. By receipt of this Email, Seibert Media shall endeavor to cease future use within one week.
21. Export and Import Control
The Licence and services under this Agreement may be subject to export and import restrictions in certain countries. The Buyer shall comply with the applicable export and import control regulations. The performance of the Agreement by Seibert Media is subject to the provision that there are no obstacles to performance due to national and international export and import law provisions or any other statutory provisions.
22. Termination
22.1 Seibert Media shall be entitled to terminate the obligation of providing the Software Maintenance (clause 11) without notice if, in particular: the Buyer breaches their obligations under this Agreement and if, despite an appropriate grace period with a rejection warning, they do not put an end to the breach or demonstrate that appropriate measures have been taken to suitably prevent the repetition of the breach of contract in the future.
22.2 The right to extraordinary termination for good cause (§ 314 BGB) remains unaffected.
23. Miscellaneous
Seibert Media is not responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, epidemics, pandemics or an outbreak of infectious disease, quarantines, national or regional emergencies, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure”); it being understood that Seibert Media is to use commercially reasonable efforts that are consistent with accepted practices in the software industry to resume performance as soon as practicable under the circumstances.
All agreements are contained within this contract.
The applicable law and the place of jurisdiction for all disputes arising out of or in connection with the Agreement shall be Frankfurt am Main (Germany) under the law of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
Should a provision of this Agreement be or become invalid, all other provisions shall remain unaffected. Such an invalid provision shall be replaced with a provision in line with the intention that the parties could reasonably attribute to the Agreement at the time of entering into said Agreement.