Governing Terms. Client may use the Atlassian products described in Schedule A (the “Products”) pursuant to the terms attached to this Order as Exhibit A, the Customer Agreement and the Atlassian Terms (each as defined below). The Products are owned and/or made available by Atlassian Pty Ltd and its affiliates (collectively “Atlassian”). “Atlassian Terms” means the terms and conditions and/or policies governing use of the Products, which terms are available at https://www.atlassian.com/legal, including but not limited to the Atlassian Software License Agreement (available at https://www.atlassian.com/legal/software-license-agreement) and the Atlassian Privacy Policy (available at https://www.atlassian.com/legal/privacy-policy.) “Customer Agreement” means the then-current version of the Atlassian Software License Agreement (available at https://www.atlassian.com/legal/software-license-agreement), Atlassian Cloud Terms of Service (available at https://www.atlassian.com/legal/cloud-terms-of-service), both as may be periodically updated by Atlassian, or other customer agreement with Atlassian for use of the applicable Products. By execution of this Order, Client agrees that it has read the Atlassian Terms applicable to the Products and the Customer Agreement and agrees to be legally bound by the Atlassian Terms and the Customer Agreement as if they have signed the Atlassian Terms and Customer Agreement directly.
TERMINATION
If the Order is terminated in whole or in part or, or expires and is not renewed, the Order and any licenses granted herein shall be terminable.
If Atlassian terminates any agreement with E7, in whole or in part, such that E7 is unable to provide the Products to Client, E7 may terminate the Order in whole or in part with a reasonable notice equal to the notice period received from Atlassian and shall provide all reasonable support to Client to find an alternative service provider (either Atlassian or another reseller.)
In the event of termination or expiration of the Order in whole or part for Client’s breach of the Order or otherwise, Client agrees to pay to E7 within fifteen (15) days after the effective date of such termination an amount equal to the total unpaid fees for the duration of the full Term for all the applicable Atlassian Products (i.e., without giving effect to any early termination) including related taxes and expenses due pursuant to the Order.
E7 and/or Atlassian may suspend Client’s or any user’s access to, or use of, the Products pursuant to the Atlassian Terms or Customer Agreement or if E7 believes that there is a violation of the Order, Customer Agreement or any Atlassian Terms. Client acknowledges and agrees that E7 is expressly permitted to immediately notify Atlassian of any known or suspected breach of the Customer Agreement or other unauthorized use of the Products and to assist Atlassian in the enforcement of the terms of the Atlassian Terms and/or the Customer Agreement.
CONFIDENTIALITY. Each party acknowledges and agrees that any and all information emanating from the other’s business, in any form, including but not limited to information relating to the disclosing party’s (including Atlassian’s) past, present, or future research, development or business activities is “Confidential Information.” Each party agrees that it will not, during or after the term of the Order, permit disclosure of any such Confidential Information to any person (other than an employee, agent or representative of the other party who needs such information for the performance of the obligations hereunder), unless such use or disclosure is specifically authorized by the disclosing party in writing. Confidential Information does not include any information which (a) is publicly available prior to the Order Form Effective Date or is made publicly available by the disclosing party without restriction; (b) is rightfully received by the receiving party from third parties without accompanying secrecy obligations; (c) is already in the receiving party’s possession and was lawfully received from sources other than the disclosing party without accompanying secrecy obligations; (d) is independently developed by the receiving party without reference to any Confidential Information of the disclosing party; or (e) is required to be disclosed as per applicable law. The secrecy of the Confidential Information disclosed pursuant to the Order shall be maintained for a period of five (5) years following disclosure thereof.
REPRESENTATIONS AND WARRANTIES
Client represents, warrants and covenants that: (i) it has the full power and authority to enter into the Order, the Customer Agreement and the Atlassian Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (ii) its acceptance of and performance under the Order, the Customer Agreement and the Atlassian Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
OTHER THAN THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH HEREIN THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND MADE BY E7 WHETHER EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS AND THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. E7 FACILITATES THE CLIENT’S LICENSE TO THE PRODUCTS PROVIDED BY ATLASSIAN ON “AS IS BASIS” ALTHOUGH ATLASSIAN MAY HAVE PROVIDED A DIFFERENT WARRANTY UNDER THE CUSTOMER AGREEMENT OR THE ATLASSIAN TERMS, AND E7 ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR THE PRODUCTS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO CLIENT BY ATLASSIAN, EXCEPT FOR E7’S OBLIGATION TO RENDER TO ATLASSIAN THE PROPER FEES FOR THE SERVICES WHEN PAID BY CLIENT HEREUNDER.
INDEMNIFICATION. Each party shall defend, indemnify and hold the other party, its officers, agents and employees, harmless from and against any and all third-party claims, demands, suits and other proceedings (“Claims”) and shall pay all liability, losses, damages, judgments, settlements, costs and expenses (including reasonable attorney’s fees) incurred by, or awarded or assessed against, the other party in connection with the Claim, or reached through a negotiated settlement of the Claim, that the indemnifying party, its employees, or subcontractors: (i) was grossly negligent or committed an intentional act that caused injury to a person or damage to property; and/or (ii) failed to comply with any applicable law, statute, regulation or ordinance.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THE ORDER OR ATLASSIAN TERMS FOR ANY DAMAGES, INCLUDING TORT, CONTRACT, OR OTHERWISE, EXCEED APPLICABLE PRODUCTS FEES PAID TO E7 WITHIN THREE MONTHS PRIOR TO THE DATE OF THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO CLIENT INDEMNIFICATION OBLIGATIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE ORDER, OR OF ANY OTHER OBLIGATIONS RELATING TO THE ORDER.
OTHER PROVISIONS
Amendment and Waiver: No amendment or modification of the Order and no waiver of any of the terms or conditions hereof shall be valid or binding unless made in writing and duly executed by both parties. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. The Atlassian Terms may be amended, supplemented or modified by Atlassian as set forth in the Atlassian Terms. The Customer Agreement may be amended, supplemented or modified by Atlassian as set forth in the Customer Agreement.
Survival and Severability: Rights and obligations under the Order, which by their nature should survive or are expressly so stated herein shall remain in full force and effect notwithstanding expiry or termination of the Order. The invalidity or un-enforceability of any provisions of the Order in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of the Order in such jurisdiction or the validity, legality or enforceability of the Order, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.
Assignment: Unless otherwise agreed by Atlassian, Client shall not assign or transfer its rights to access Atlassian Products facilitated by E7 hereunder, to any third party.
Entire Agreement: The Order, the Customer Agreement and the Atlassian Terms, shall constitute the entire agreement amongst the parties hereto. It shall supersede all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment or other communication between the parties relating to its subject matter during the term of the Order.
Governing Law: All transactions under the Order are governed by the laws of Michigan, without reference to its conflict of law principles.
Dispute Resolution: In the event of any dispute or disagreement between the parties arising out of or relating to the Order (the “dispute”), the parties will endeavor to resolve the dispute in accordance with this section. Either party may invoke this section by providing the other party written notice of its decision to do so, including a description of the issues subject to the dispute. Each party will appoint an executive officer to discuss the dispute and no formal proceedings for the judicial resolution of such dispute, except for the seeking of equitable relief, may begin until the earlier of: (i) either executive officer concludes, after a good faith effort to resolve the dispute, that resolution through continued discussion is unlikely, and (ii) thirty (30) days after the date the written dispute notice was provided. The parties shall refrain from exercising any termination right and shall continue to perform their respective obligations under the Order and the order while the parties endeavor to resolve the dispute under this section, provided that, any party alleged to be in breach promptly makes good faith efforts to cure the breach and pursue the cure in good faith.
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