THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER" OR "YOU") AND LICENSOR (AS DEFINED BELOW) (EACH A "PARTY", COLLECTIVELY, THE "PARTIES") GOVERNING YOUR USE OF THE SOFTWARE (AS DEFINED BELOW).
PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY OR ORGANIZATION TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS EULA.
1. USE OF SOFTWARE AND LICENSE; RESTRICTIONS.
1.1 The Software
The “Software” means either Jira Misc Workflow Extensions or Jira Misc Custom Fields.
Subject to the terms of this EULA and payment of all applicable fees, Licensor grants to Customer a nonsublicensable, nontransferable, nonexclusive license to use the Software solely in accordance with, and during the term of, this EULA and solely for Customer's internal business purposes during the license period specified in Section 6. This EULA shall become effective on the earlier of (i) the date in which Customer pays all applicable fees or (ii) upon first use of the Software ("EULA Commencement Date"). Customer shall select Customer's options for the Software through the Atlassian Marketplace online ordering process (the "Ordering Process").
As selected by the Customer as part of the Ordering Process, Customer's license for use of the Software shall be in one of the following manners: (a) as part of a Licensor-hosted offering (software-as-a-service) accessible by Customer via the internet ("SaaS Offering"), or (b) as part of an on-premise, or self-hosted, Customer hosted Software offering ("Self-hosted Offering"). With respect to the SaaS Offering, (i) Customer will not be provided with and shall have no right to any software code and, (ii) Licensor will use reasonable efforts to make the SaaS Offering available twenty-four (24) hours a day, seven (7) days a week, but notwithstanding the foregoing, Licensor reserves the right to suspend Customer's access to the SaaS Offering for scheduled or emergency maintenance. Customer acknowledges and agrees that while Licensor makes reasonable efforts to maintain access for the Customer, there may be unscheduled unavailability of the Software.
With respect to the Self-hosted Offering, only object code will be provided to Customer, and Customer has no rights to any Software source code. Licensor shall at all times retain all title to and ownership of the Software and all copies thereof. Customer may host the Software on its servers or within its account on third-party servers. In the event Customer hosts the Software in their account on third-party servers, the Customer is liable and responsible for maintaining and verifying the protections that the restrictions set forth herein are upheld. Customer shall not and shall not allow any third party to (a) reproduce or modify the Software, (b) provide, rent, sell, sub-license, lease, merge, translate, loan, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying Proprietary Information (as that term is defined below) (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of Licensor, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export (directly or indirectly) of the Software or a portion thereof (i) in breach of any applicable laws or regulations, including (but not limited to) United States export laws and regulations; (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, without first obtaining such license or approval. Customer shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media. Customer is responsible for (i) all activity occurring under Customer's user accounts (including, without limitation, administrators, employees, contractors and/or any other third party users) and users' compliance with the terms and conditions herein; and (ii) complying with any applicable laws which might impact the Customer's right to import, export or use the Software and documentation, and Customer represents and warrants that it shall comply with any regulations or registration procedures required by applicable law to make this license enforceable. Licensor is not responsible to Customer for unauthorized access to Customer's data or the unauthorized use of the Software.
1.3 Authorized Users
With respect to the Self-hosted Offering, the license granted herein shall be for a maximum number of users subscribed for by the Customer as part of the Ordering Process ("Authorized Users"). The number of users accessing the Software at any time may not exceed the number of Authorized Users. With respect to the SaaS Offering, for monthly subscriptions, Customer's invoice will be updated monthly to reflect the number of users provisioned by Customer.
2. SUPPORT AND UPGRADES.
With respect to the SaaS Offering, so long as the Customer's license is active, Customer shall receive support in accordance with the Licensor's policies, which are listed at http://innovalog.com/support-policy, as the same is updated from time to time (the "Support"). With regard to the Self-hosted Offering, Customer shall be entitled to Support at all times as the Customer has an active maintenance agreement related to the Software.
Licensor may, from time to time and in its sole discretion, issue new releases for the software including, but not limited to, upgrades, new features, patches, enhancements, or fixes ("Upgrades"). With respect to the SaaS Offering, Upgrades will be immediately and automatically available as of the release date. With respect to the Self-hosted Offering, Upgrades will be available once released, but can only be installed by Customer if Customer has an active maintenance agreement related to the Software. Upgrades shall be covered by this EULA.
3. FEES AND PAYMENT.
Fees and payments will be payable as part of the Ordering Process and in accordance with the terms and conditions on the Atlassian Marketplace.
4. LICENSOR INDEMNITY.
Licensor, at its sole expense, agrees to defend Customer against any third party claim that Customer's use of the Software, as delivered by Licensor to Customer and used in accordance with this EULA, directly infringes a third party copyright or issued patent or directly misappropriates a trade secret (but only to the extent such misappropriation is not a result of Customer's actions) under the laws of: (a) the United States, (b) Canada, or (b) the European Economic Area, and indemnify Customer from the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (i) Customer promptly notifies Licensor in writing of the Infringement Claim; (ii) Licensor has sole control of the defense and all related settlement negotiations; and (iii) Customer provides Licensor with the information, assistance and authority to enable Licensor to perform Licensor's obligations under this Section. Customer may not settle or compromise any Infringement Claim without the prior written consent of Licensor. In any action based on an Infringement Claim, Licensor, at its option and its own expense, will either: (1) procure the right for Customer to continue using the Software in accordance with the provisions of this EULA; (2) make such alterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing, substantially similar substitute; or (4) terminate the license granted herein, and upon Customer certified destruction or deletion of the Software, Licensor shall refund to Customer the unused remainder of any license fees prepaid by Customer and received by Licensor. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this EULA. Licensor shall have no liability or obligations for an Infringement Claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than Licensor or under the direct control of Licensor; (b) the combination, operation or use of the Software with non-Licensor products; (c) use of the Software outside the scope of this EULA; (d) Customer's failure to use all available Upgrades to the Software made available to Customer by Licensor, if the claim would not have occurred but for such failure; (e) use of open source software or freeware technology or any derivatives or other adaptations thereof not embedded by Licensor into the Software; or (f) any Software that is provided on a no charge, beta, or evaluation basis. Nothing in this provision shall be construed as a limitation on Customer's ability to retain legal counsel at its own expense to passively monitor the proceedings. This Section sets forth Customer's sole and exclusive remedies and Licensor's entire liability with respect to claims for infringement or violation of third party intellectual property rights by the Software.
5. CUSTOMER INDEMNITY.
Customer shall indemnify, defend, and hold harmless Licensor, affiliates, and each of their respective officers, directors, employees, spouses and representatives (each, including Licensor, a "Licensor Indemnitee") from and against any and all losses, damages, costs (including legal fees) and expenses incurred by the Licensor Indemnitee arising out of or relating to (i) Customer's use of the Software in an unauthorized manner (for example, using the Software for the benefit of a third party) and (ii) the actual or alleged infringement of any proprietary or other rights of a third party in any materials provided by or on behalf of Customer to Licensor in connection with this EULA.
During the Ordering Process, Customer may select any of the following types of licenses with the durations set forth next to its type:
|Type of License||Duration of License|
|SaaS||Monthly or Yearly, as selected by Customer at time of ordering|
|Self-hosted||Perpetual, subject to annual fees for maintenance and support|
|Free License (Non-profit only)||One Year|
|Evaluation (SaaS or Self-hosted)||Thirty Days|
The duration of the license may be renewed and extended on the Atlassian Marketplace. Unless otherwise set forth in a new EULA, any renewals or extensions shall be governed by this EULA.
Customer may, at its discretion, provide feedback to Licensor with respect to its use of the Software ("Feedback"). Licensor shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit.
Customer shall implement and maintain appropriate technical and organizational measures to protect Customer data (including Customer Personal Data) against any breach of security leading to accidental or unlawful destruction, loss, alteration or unauthorized disclosure of, or access to such information (a "Data Breach"). Such measures shall be consistent with industry standards.
Except as otherwise agreed in writing by the Licensor, with respect to the Self-hosted Offering, the Customer must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Customer. Should the Customer request the install of the Software on hardware systems that it does not own, and if the Licensor so permits, the Customer will ensure the terms of this EULA are complied with and the Customer shall indemnify the Licensor for all costs, damages and loss the Licensor suffers arising from such installation or use of the Software on any such system.
9. LIMITED WARRANTY AND DISCLAIMERS.
LICENSOR WARRANTS THAT THE SOFTWARE IS AS DESCRIBED IN THE DOCUMENTATION RELATED TO THE SOFTWARE AVAILABLE ON THE ATLASSIAN MARKETPLACE. LICENSOR DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR OTHER TERMS RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR OTHER TERMS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PURPOSE OR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE AND ALL SERVICES HEREUNDER ARE PROVIDED "AS IS," WITH ALL FAULTS. LICENSOR AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
10. LIMITATION OF LIABILITY AND DAMAGES.
10.1. SUBJECT TO SECTION 10.3 AND 10.4, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO OR ARISING OUT OF THIS EULA AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY FOR ANY AMOUNTS IN EXCESS OF A SUM EQUAL TO THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THIS EULA IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.2. SUBJECT TO SECTION 10.3 AND 10.4 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOSS OF REVENUES; (III) LOSS OF PROFITS; (IV) LOSS OR INACCURACY OF DATA; OR (V) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING UNDER OR IN CONNECTION WITH THIS EULA, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHER THEORY.
10.3. THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 10 SHALL NOT APPLY TO BREACHES OF LICENSE RESTRICTIONS SET FORTH IN SECTION 1, INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, AND MISUSE OF PARTY'S INTELLECTUAL PROPERTY HEREUNDER.
10.4. NOTHING IN THIS EULA SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
Customer may not assign the rights or the obligations arising under this EULA are without the Licensor's prior written consent, and any such attempted assignment or transfer shall be void and without effect.
12. GOVERNMENT USE.
If Customer is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this EULA.
13. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
A Party (the "Receiving Party") may receive Confidential Information of the other Party or its affiliates (the "Disclosing Party") and the Receiving Party shall, during the term of this EULA and thereafter, keep all such Confidential Information confidential and protect such Confidential Information by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion. Each Receiving Party shall not use the Confidential Information for its own purposes (other than implementation of this license) nor disclose Confidential Information to any person other than such party's employees who have a need to know that Confidential Information.
Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is required by law, provided, however, that the Party required to disclose information to such law shall use reasonable efforts to inform the Disclosing Party prior to such disclosure and assist Disclosing Party, at Disclosing Party's expense, to seek to quash or otherwise limit such disclosure. Licensor may also disclose Confidential Information to its subcontractors that have a need to know that Confidential Information in order to perform the services, and to its group companies.
As used herein, "Confidential Information" means information of a confidential or proprietary nature (including trade secrets and information of commercial value) which relates to the Disclosing Party that is disclosed or provided to Receiving Party by or on behalf of Disclosing Party pursuant to this EULA and which is marked "confidential" or "proprietary"; provided, however, that Confidential Information shall not include information that is or becomes a part of the public domain through no act or omission of the Receiving Party. This section shall apply during the term of this EULA, and for three (3) years after the termination or expiration hereof. Without prejudice to the generality of the foregoing, the Software and any underlying object and source code and related technical or business information provided by Licensor ("Proprietary Information"), shall constitute the Confidential Information of Licensor without the need for further markings.
14. EFFECTIVE DATE, TERM, CONTROLLING LAW, ATTORNEYS' FEES AND SEVERABILITY.
This EULA shall become effective on this EULA Commencement Date and shall continue in accordance with the license term set forth in Section 6, as the same may be renewed or extended therein. This EULA will be construed in accordance with and governed exclusively by the laws of France, without respect to conflict of laws principles. All disputes or claims (including non-contractual disputes or claims) under this EULA will be resolved in the applicable French court. The Parties consent to the exclusive jurisdiction of such court and waive any personal jurisdiction or venue defenses otherwise available. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded and will not apply to this EULA. In any action to enforce this EULA, the prevailing party will be entitled to reasonable costs and attorneys' fees incurred. Each provision of this EULA shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable or invalid by a court, the other provisions of this EULA shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that this EULA shall otherwise remain in effect.
If you are using the Software or documentation outside the U.S.A., then the following shall apply: (a) You confirm that this EULA and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software and documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
15. ENTIRE EULA; MODIFICATIONS; WAIVERS; THIRD PARTY RIGHTS.
This EULA, together with any agreement, policy, documentation or guideline referenced in this EULA, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and the Software, superseding all prior or contemporaneous proposals, communications and understandings, oral or written relating to that subject matter. Waiver by a Party of a breach of any provision of this EULA by the other Party will not operate as a waiver of any other or subsequent breach by such breaching Party. No one other than a party to this EULA, their successors and permitted assignees shall have any right to enforce any of the terms of this EULA.
16. TERMINATION; SUSPENSION.
Without affecting any other right or remedy available to it, either Party may terminate this EULA with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under this EULA that has not been cured (if curable) within thirty (30) business days of notice thereof or either Party's (i) announces a cessation of its entire business or becomes insolvent; (ii) elects to dissolve and wind-up its business; (iii) makes a general assignment for the benefit of creditors; or (iv) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party's property. Licensor may also terminate this EULA with immediate effect if Customer fails to pay any amount due to Licensor on the due date for payment and remains in default for fifteen (15) days after being notified in writing to make such payment. Upon termination of this EULA, the license granted hereunder will terminate and Customer shall promptly destroy all documents, notes and other materials regarding the Software (including any physical copies made thereof), and an officer of Customer shall certify the same to Licensor; otherwise, the restrictions related to the Software in this EULA will remain in effect. Upon termination, Customer may retain copies of the output generated by the Software and continue to have a license to use such output in the form in Customer's possession at the time of termination for internal business or compliance purposes. Without limiting the foregoing, Licensor may suspend or limit Customer's access to or use of the Software without liability if (i) Customer's account is past due, or (ii) Customer's use of the Software results in (or is Licensor determines it is reasonably likely to result in) damage to or material degradation of the Software which interferes with Licensor's ability to provide access to the Software to other customers. Termination or expiry of this EULA shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this EULA which existed at or before the date of termination or expiry.
Sections 3 - 5, 9 - 11, 13, 14, 16 (with respect to this sentence only), 18 - 21, all provisions related to ownership of the Software, and any other provisions which by it nature should survive termination shall survive termination of this EULA for any reason.
17. DATA PROTECTION.
In this EULA, the terms "data controller", "data processor", "process and processing" and "personal data" have the meanings given to them in European Union Directive 95/46/EC (as amended, superseded or replaced).
Relationship of the parties: To the extent Licensor processes any personal data in the course of providing the Software to Customer hereunder ("Customer Personal Data") it will only do so as a data processor acting on behalf of the Customer (as data controller) and in accordance with the requirements of this EULA.
Licensor's compliance: Licensor will process Customer Personal Data in accordance with Customer's lawful instructions and will (i) not assume any responsibility for determining the purposes for which and the manner in which Customer Personal Data is processed; nor (ii) process Customer Personal Data for its own purposes.
Sub-processing: Customer authorizes Licensor to subcontract the processing of Customer Personal Data under or in connection with this EULA to a third party provided that: (i) Licensor provides Customer with details of any subcontractor it has appointed upon written request; and (ii) Licensor requires any subcontractor it appoints to protect Customer Personal Data to a standard which is no less strict that the requirements set out in this Section 17 (Data Protection).
Cooperation: Licensor will provide all assistance reasonably required by Customer (at Customer's expense) to enable Customer to respond to, comply with or otherwise resolve any request, question or complaint received by Customer from (i) any living individual whose Personal Data is processed by Licensor on behalf of Customer or (ii) any applicable formally designated data protection authority.
International Data Transfers: In connection with this EULA, Customer acknowledges and agrees that Licensor may transfer and access Customer Personal Data around the world, including to its affiliates. Licensor shall not process (and shall not permit any third party to process) any Customer Personal Data outside the United States unless and until it has done all such things as are necessary to ensure an adequate level of protection for the Customer Personal Data in accordance with the requirements of applicable privacy and data protection laws. For these purposes, Customer acknowledges that Licensor shall provide adequate protection for such Customer Personal Data by virtue of having self-certified its compliance with the EU-U.S. Privacy Shield Framework. Customer acknowledges that Licensor and any of its affiliates may disclose the privacy provisions in this EULA to the US Department of Commerce, the Federal Trade Commission, the European data protection authority, or any other US or EU judicial or regulatory body upon their lawful request.
Customer Responsibilities: Customer warrants and undertakes to Licensor that: (i) it has complied, and will continue to comply, with the requirements of any applicable privacy and data protection laws to which it is subject ("Applicable Privacy Laws"); (ii) all Customer Personal Data has been, and will continue to be, collected and processed in accordance with notice, consent and other requirements of Applicable Privacy Laws (and, where applicable, the collection and processing has been notified to the relevant authorities); and (iii) it has, and will continue to have, the right to transfer, or provide access to, the Customer Personal Data to Licensor and its affiliates for processing and such processing by Licensor will not breach Applicable Privacy Laws.
18. INTELLECTUAL PROPERTY.
Customer acknowledges that: (a) Licensor or its third party licensors (as applicable) owns all patent, copyright, domain name rights, database rights, trademark, trade secret and any other intellectual property rights embodied (i) in the Software, Upgrades and/or any services provided by Licensor or its affiliates hereunder; and (ii) any information, data, publications, papers, analyses, metadata or other materials which may be derived from any of the foregoing that is derived or created by Licensor or its affiliates by reference to the services provided hereunder, in each case whether registered, registrable or not and both present and future, including all applications and right to apply for any of the foregoing rights anywhere in the world, and the right to sue for past infringements of any of the foregoing rights; and that (b) rights in the Software is licensed (not sold) to Customer, and that Customer shall have no intellectual property rights in, or to, the Software other than the right to use the Software in accordance with the terms of this EULA.
Customer expressly acknowledges and agrees that Licensor shall be the sole owner of any newly-developed intellectual property including but not limited to (i) newly-developed, revised, or modified source code and (ii) inventions where such are related in any way to the Software or Licensor's general business, regardless of the creator, whether such are developed, revised, or modified in response to Customer's requests, suggestions, or ideas, even if performed as Software related services paid for by Customer. During the term of this EULA and thereafter, Customer shall not assert the invalidity of the Licensor intellectual property, or contest Licensor's right, title or interest therein and thereto, and Customer shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest.
19. THIRD PARTY SOFTWARE.
You acknowledge that the Software may contain copyrighted software of Licensor's affiliates and suppliers which are obtained under a license from such affiliates and suppliers (collectively, "Third-Party Software"). All third-party licensors and suppliers retain all right, title and interest in and to such Third-Party Software and all copies thereof, including all copyright and other intellectual property rights. Customer's use of any Third-Party Software shall be subject to, and you shall comply with, the terms and conditions of this EULA, and the applicable restrictions and other terms and conditions set forth in any Third-Party Software documentation or printed materials provided to the Customer, including without limitation an end user license agreement.
20. BASIS OF BARGAIN.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS EULA ARE MATERIAL, BARGAINED FOR BASES OF THIS EULA AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS EULA AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS EULA.
21. AUDIT RIGHTS.
Licensor reserves the right to authorize a representative of Licensor to audit Customer's records relating to the Software and use thereof, which shall only include the data input or generated via the Software. Upon prior written notice, Customer shall provide reasonable access to such records during normal business hours or perform such actions reasonably requested by Licensor to exercise their rights in this section.
Licensor may include Customer's name and/or logo in Licensor's marketing materials and on Licensor's website to indicate that Customer is a customer of Licensor and shall respect any procedures and/or guidelines provided by Customer for the use of your logo. Should Customer desire that Licensor not use its logo, Customer may send notice to Licensor in accordance with Section 23.
Any notice required herein or by applicable law shall be deemed properly given and effective (a) when personally delivered (to the person or department if one is designated below), (b) when deposited with the mail, certified or registered, postage prepaid, return receipt requested, or (c) when deposited with a nationally recognized overnight delivery service such as Federal Express with all fees and charges prepaid, and addressed in each such case as set forth below:
David Fischer ("Licensor")
3 allée des Robichons,
78170 La Celle Saint Cloud, France
The address of Customer is as provided by Customer at the time it enters into this EULA. Any party may by notice given as herein provided change its address to another single address with ten (10) days prior written notice. Personal delivery to a party or to any officer, general partner, agent or employee of such party at said address shall constitute receipt. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been received shall also constitute receipt.