Seibert Media GmbH Cloud EULA for Mantra - 

End User License Agreement for Atlassian Cloud 

(General terms and conditions) 

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 [Urhebergesetz - German Copyright Act]). The copyright with regard to the Software is subject to this Agreement. The rights of use concerning the Software are subject to this Agreement and the Atlassian Cloud Terms of Service.

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=83460315 

1. Object

1.1 This contract covers the rights of use of the Software and the maintenance services that //SEIBERT/MEDIA provides for the purchase by the Buyer. An overview of the current software that //SEIBERT/MEDIA offers can be found at https://marketplace.atlassian.com/vendors/9093 and possibly other vendor accounts (if this EULA is linked from there).

1.2 Services associated with the Software are mainly supplied within the Atlassian Cloud environment (hereinafter: “Atlassian Cloud”).  //SEIBERT/MEDIA has no direct access to the Buyer’s data, other than for a short time to supply Cloud Services. This includes content creation, editing, and storage and all other data produced with the Software by the Buyer in the Atlassian Cloud (hereinafter: Application Data). Only technical staff running the service can possibly access the Buyer’s data. It is solely used to supply Cloud Services of the Software (hereinafter: Application Data). //SEIBERT/MEDIA has no influence over the Atlassian Cloud. Please refer to the Atlassian Cloud Terms of Service for the core features.

1.3 This Agreement covers the most current version of the Software from the beginning until the end of the term.

1.4 Other services including but not limited to 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 a) 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 Buyer’s Licence specifically acquired and this EULA (collectively, the “Usage Rights”). “Cloud Service” means that //SEIBERT/MEDIA is hosting the Software or parts of it as a software-as-a-service for the Buyer. This “Cloud Service” is a //SEIBERT/MEDIA Cloud Service. It should not be confused with the cloud service that Atlassian is offering. The Atlassian Cloud Service is clearly described as from Atlassian in this document. 

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. 

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  //SEIBERT/MEDIA keeps Cloud Services available for use on a central data processing system that is not part of the Atlassian Cloud (see § 1.2).

2.5 All Application Data remains, at rest,  on the Atlassian Cloud.  The Software will be available in accordance with the Atlassian availability standards.

2.6 All Application Data remains, at rest, on Servers controlled by //SEIBERT/MEDIA with the Google Cloud Infrastructure. Parts of it are accessible through Atlassian Confluence Cloud, or Atlassian Jira Cloud.

2.7 The point of interconnection for the Software and Application Data is, in most cases, the user’s web browser. //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, //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.

2.8 The Buyer agrees to take suitable precautions to prevent any unauthorized third-party access to the software. The Buyer’s license 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 (duty of care).

2.9 //SEIBERT/MEDIA is using analytics software to improve its own software. Learn more about this here. 

3. Term

The Buyer may choose the term of the Agreement on the Atlassian Marketplace according to the options available there. The term is automatically extended by the length of the initially selected term unless either party terminates the Agreement at the end of the term (“the Term”). The right of each party to extraordinary termination for good cause shall remain unaffected. The Agreement can be terminated by clicking the corresponding button "Unsubscribe" for this Software within the administration of the basic Software. 

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.

4. Resale, Transfer or Sublicensing

The Buyer may not transfer, sell, rent, lease, sublicence, re-licence or assign the Software in any way. In particular, the Buyer shall not be entitled to transfer access to the Software to third parties other than specified by the terms of the Atlassian Marketplace. The Buyer shall take the necessary precautions to guarantee that unauthorized third parties cannot access the Software and/or the Application Data.

5. Cloud Services

The Buyer will not intentionally (a) interfere with other customers’ access to, or use of, the Cloud Service, or with its security; (b) facilitate the attack or disruption of the Cloud Service, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware; (c) cause an unusual spike or increase in Buyer’s use of the Cloud Service that negatively impacts the Cloud Services operation, or (d) submit any information that is not contemplated in the applicable Documentation.

6. Ownership

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.

The ownership of Application Data created using the Software shall remain with the author of that content.

7. Maintenance Services for the License Period

7.1 //SEIBERT/MEDIA offers the following services to the Buyer free-of-charge for the software during the term:

7.2 The Buyer will get software updates (updates)  in the way defined by Atlassian, when updates are released by //SEIBERT/MEDIA.

7.3 The Buyer shall be provided with technical support for troubleshooting and error resolution (hereinafter referred to as “Software Maintenance) for the software as set out in clause 9.1 during the support hours referred to in clause 10.3 via the support channels listed in clause 8.  

7.4 Full particulars of these services are set out below in clauses 12, 13, and 14. //SEIBERT/MEDIA  is entitled to have these services provided by third parties.  

8. Support Channels 

8.1 //SEIBERT/MEDIA offers solely the following support channels:

1. Publicly accessible documentation at:
   https://appanvil.atlassian.net/l/cp/rznT1NvS
   
2. Publicly accessible Helpdesk for registering new support tickets at:
   https://appanvil.atlassian.net/servicedesk/customer/portal/9
   
3. Email address for registering new support tickets at:
   mantra@appanvil.atlassian.net

8.2 //SEIBERT/MEDIA endeavours to be easily available during the support hours set out in paragraph 10.3  below, via email, chat, Atlassian forums, //SEIBERT/MEDIAS’s forums, social media, and other channels. However, availability is at the discretion of //SEIBERT/MEDIA.

9. Included Services

9.1 The following support services are exclusively offered by //SEIBERT/MEDIA:

1. Investigation of problems with the software, possibly using remote access (troubleshooting) in presence of customer (like a remote desktop sharing session),
2. Analysis of errors and investigation of the underlying causes of the reported problems (root cause analysis),
3. Support for interoperability problems with other software from the Atlassian Marketplace.

The above-mentioned services are final. 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 separately in writing.

9.2 //SEIBERT/MEDIA shall use reasonable endeavors to  resolve documented, reproducible errors in the software (support services) using competent personnel and according to accepted industrial standards. //SEIBERT/MEDIA is not responsible for the success of the resolution of errors and assumes 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, which occurs other than by user error. If an error cannot be reproduced by //SEIBERT/MEDIA, 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 endeavor to reach an agreement on the action to be taken. 

9.3 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.

9.4 //SEIBERT/MEDIA is exempted from the obligation to perform support services for the Buyer without affecting the payment obligation for the agreed purchase price, particularly 

1. in the event of errors resulting from unauthorized modifications or alterations to the software;
2. 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;
3. for software versions that were released more than 18 months before the error was reported 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.
4. 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; 
5. 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);

1. for any hardware defects; 
2. when the software is used on hardware and operating system environments other than those specified in the user documentation;
3. in the event of disruptions caused by force majeure or similar circumstances;
4. alterations made to the software made by the Buyer in breach of the contract;
5. 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.

9.5 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 it can be recovered with minimum effort.

10. Error Reporting, Obligation to Cooperate, and Support Hours

10.1 The Buyer must immediately report any errors that occur with a detailed description of the problem using the support channels listed in clause 8.

10.2 For the execution of the contractual services, cooperation must be complete and punctual. The obligation to cooperate includes the following items in particular:

1. The Buyer must observe all 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.
2. When reporting an error, all documentation, log files, and other information relevant to troubleshooting shall be made available without delay;
3. Only data free from computer viruses or other harmful code may be transmitted;
4. 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.

10.3 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. //SEIBERT/MEDIA reserves the right to change support times as needed.

10.4 Processing of support cases, taking into account the reaction and solution times specified in clauses 12, 13, shall be carried out during the support hours specified in paragraph 3.

11. Error Classification Levels

11.1 In the case of error reports, the processing of the support cases is carried out within the response and resolution times specified in clauses  12, 13. The response and resolution times depend on the classification level; The following error classification levels apply:

1. Priority 1: Critical error. The use of the software is impossible or significantly restricted. A significant limitation exists where the software no longer works and no functional workaround can be achieved. 
2. Priority 2: Other disturbances. Any other problems with the software.

11.2 //SEIBERT/MEDIA shall strive to handle all support cases in a timely manner. Priority 1 errors are given priority over priority 2 errors, independent of the time at which they were registered in the support system.

12. Response Time

12.1 Response time is the period between the report of an error and the first action taken by //SEIBERT/MEDIA. The period starts with the receipt of the corresponding support request within the support hours specified in clause 10 (3), and runs exclusively during the agreed support hours. If a message appears outside the agreed support hours, the response time begins with the start of the next support period.

12.2 //SEIBERT/MEDIA shall strive for the following response times according to the error level:

1. Priority 1: 4 hours
2. Priority 2: 8 hours 

12.3 The response times are //SEIBERT/MEDIA’s declared aspiration. In particular with regard to the provision of clause 11 (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 or seek any other form of compensation.

12.4 For our international customers: Although our guaranteed service hours are European times, we do offer support internationally at quite swift answer rates. At the time of writing this passage we performed as follows within the last 12 weeks: Median response time: 15m, Median first response time: 32m, Median time to close: 57m, Satisfaction score: 100 out of 100. These numbers include a 24/7 time span and show that we're also doing support out of the legally guaranteed service hours. In addition it may be helpful for you to know that we do employ full-time employees in the USA that do support as well. Please note that these numbers are subject to change. If you have questions about this, please do not hesitate to contact us.

13. Resolution Time

13.1 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.

13.2 //SEIBERT/MEDIA shall strive for the following resolution times according to the error classification levels: 

1. Priority 1: 16 hours
2. Priority 2: 40 hours

13.3 Clause 12 (3) shall apply accordingly.

14. Limitation of liability

//SEIBERT/MEDIA shall be liable for damages resulting from this contract, for whatever actual or legal reasons, only in accordance with the following regulations:

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.
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. 
3. Liability is excluded in the event of negligent violation of other non-essential contractual obligations.
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 with respect to //SEIBERT/MEDIA software. The maximum damage that //SEIBERT/MEDIA is liable for is limited as in paragraph 2.
5. //SEIBERT/MEDIA  shall not be liable for the loss of 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. 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.

15. Fees

All costs for the Software are defined in the Atlassian Marketplace. In the Atlassian Marketplace, the Buyer purchases and pays directly unless they work with an Atlassian Solution Partner. 

16. Warranty 

16.1 //SEIBERT/MEDIA  guarantees that the Software has the quality as defined in this Agreement during the Term.

16.2 //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.

16.3 Warranty claims shall become statute-barred within one year of the Software being provided by //SEIBERT/MEDIA.

17. Termination

17.1 //SEIBERT/MEDIA  shall be entitled to terminate the obligation of providing the Software Maintenance 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. 

17.2 The right to extraordinary termination for good cause (§ 314 BGB) remains unaffected.

18. 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 help@seibert-media.net at any time. By receipt of this Email, //SEIBERT/MEDIA shall endeavor to cease future use within one week.

19. 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.

20. Miscellaneous

20.1 //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.

20.2 All agreements are contained within this contract.

20.3 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.

20.4 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.