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“Accessible Code” means source code that is unprotected and accessible.
“Affiliate” means another entity controlled by or under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Application” means the Atlassian JIRA application within which the Software runs.
“Authorized User” means a person who accesses and uses the Software under a User License.
“Cloud Products” means Licensor's Software hosted in the cloud.
“Embedded Software” means any third party software licensed by Licensor from a third party and embedded in the Software.
“Fees” mean all fees and expenses payable by the Licensee to Licensor in acquiring the Software and as applicable any Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by Licensor.
“Maintenance” means the provision by Licensor to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
“Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.
“OEM Distribution” means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.
“Paid License” means a license for which Fees have not been waived by Licensor.
“Parties” means either Licensor or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without Licensor’s prior written permission and is otherwise not accessible under this EULA.
“Purchase” means acquisition of the Software from a Reseller or Licensor.
“Reseller” means a third party selling and distributing Licensor services, products, or both, under authorization from the Licensor.
“Software” means the Licensor’s branded software that accompanies this EULA, which may include computer software, Accessible Code and Protected Code, associated media, Media, printed materials, electronic documentation, Internet-based services and Embedded Software.
“User License” means a license granted under this EULA to the Licensee to permit an Authorized User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.
2. GRANT OF LICENSE
The Software is licensed, not sold. Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the right to use the Software subject to the following:
2.1 Paid License
2.1.1 Authorized Users
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The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Licensor and its third party suppliers. Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of this license.
2.3.4 Permitted Computers
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Licensor retains all rights, title and interest in and to the Software (other than Embedded Software), as well as all intellectual property rights (such as copyright, patent and trademark) in and to the Software not expressly granted to Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.
5.2 Embedded Software
The Licensor’s Software contains Embedded Software that is licensed from its respective third party owner. Additional obligations may apply to the use of Embedded Software by the Licensee that is not in accordance with the use of the Software under this EULA. In such circumstances, the Licensee must acquire any licenses and consents from the relevant third parties for the use of any Embedded Software by the Licensee.
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Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. Licensee is not granted any rights to any trademarks or service marks of Licensor.
5.4 Warranty
The Licensor warrants that:
it has the right to enter into this licence and to grant to the Licensee a licence to use the Software as contemplated by this EULA;
the Software will conform in all material respects to the Software’s documentation; and
the Software is free from viruses, worms, time bombs, Trojan horses and other harmful code.
6. BREACH BY LICENSEE
6.1 General
If the Licensee materially breaches any of its obligations, or causes a breach of its obligations which cannot be cured, then the Licensee must immediately report such breach to Licensor, in writing as required in Clause 17 (Notices).
6.2 Breach of Additional Licenses
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To the maximum extent permitted by applicable law, Licensor and its third party suppliers provide the Software and any Maintenance (Clause 6) AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA hereby disclaim all other warranties or remedies, whether express, implied or statutory, including but not limited to the performance, condition, merchantability, fitness for a particular purpose, data accuracy, availability, or reliability. Additionally, Licensee acknowledges that Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to a third party’s Service Level Agreement.
9.2 Non-excludable Remedies
The Licensee may have remedies against Licensor imposed by law or statute that cannot be excluded by Licensor and its third party suppliers. To the extent the Licensee has such legal remedies against Licensor or its third party suppliers then to the fullest extent permitted by law Licensor and its third party suppliers’ liability are limited (a) at Licensor’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance; 1) resupply of the Maintenance; or 2) the cost of having the Maintenance supplied again; or (b) if the limitation set forth in Clause 10.2(a) is not applicable, then Licensor’s maximum liability shall be equal to three times the amount actually paid by the Licensee for the Software.
10. LIMITATION OF LIABILITY
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