Comalatech Cloud Services Agreement
Effective date: March 28th, 2019
Comala Technology Solutions Inc. (“Comalatech”) provides software services (the “Services”) through the Atlassian Cloud (the “Atlassian Cloud”). The Atlassian Cloud is operated by Atlassian Pty Ltd. (“Atlassian”).
If you do not agree to the terms of this Agreement, do not access or attempt to use any of the Services.
1. Covered Services
(1) The Services (each a “Service”) include Apps, add-ons, plugins and integrations for JiraTM, ConfluenceTM and Jira Service DeskTM. JiraTM, ConfluenceTM and Jira Service DeskTM are provided by Atlassian. The Services do not include any software subject to the Comalatech End User License Agreement, available at https://comalatech.com/end-user-license-agreement/. For greater clarity the Services may include software which is downloaded by the End User and run by End User hardware (for example desktop or mobile applications). Any such software which is provided through the Services is subject to this Agreement.
(2) In providing the Services, Comalatech may also provide products or access to services provided by third parties (“Third Party Products”).
(3) The End User’s procurement or use of any Third Party Products is regulated under separate agreements between the End User and the relevant third party. Comalatech is not responsible for any Third Party Products.
2. Ownership and Copyright
(1) You acknowledge that any and all information, content, reports, data, databases, graphics, interfaces, web pages, software code, text, files, audio recordings, video recordings, product names, company names, trademarks, logos and tradenames (collectively “Intellectual Property”) contained on or provided through the Services, including the manner in which the Intellectual Property is presented or appears and all information relating thereto, is the property of their respective owners as indicated or Comalatech, as the case may be. The copying, decompiling, redistribution, use, or publication by you of any part of the Intellectual Property, except as contemplated by this Agreement, is strictly prohibited. You do not acquire ownership rights to any of the Intellectual Property. The provision of any Intellectual Property by Comalatech or any other person or entity does not constitute a waiver of any right in such Intellectual Property.
(1) Mandatory Subscription: You must have a valid subscription to use any of the Services.
(2) Evaluation License: by subscribing for the Service under an evaluation subscription, Comalatech grants the End User a one-time, non-exclusive, non-sub-licensable, license to use the Service through the Atlassian Cloud for a thirty (30) day period commencing on the day of subscription. This is not a transfer of title.
(3) Cloud License: by purchasing a cloud subscription for the Service, Comalatech grants the End User a non-exclusive, non-sub-licensable, license to use the Service through the Atlassian Cloud for the period of the cloud subscription. This is not a transfer of title.
(4) The Evaluation License and Cloud License (collectively the “Licenses”) may be subject to additional limitations, for example a maximum number of users, or a maximum number of remote agents. Any additional limitations will be specified when the End User obtains or renews their evaluation subscription or cloud subscription, or by this Agreement. The End User must comply with any additional limitations on any of the Licenses.
(5) Under any of the Licenses, You may not and shall not, without Comalatech’s express written authorization:
- (a) transfer any of the Licenses;
- (b) provide access to the Services to any third party;
- (c) remove any copyright or other proprietary notations from the Intellectual Property;
- (d) distribute the Intellectual Property for any purpose, including, without limitation, compile an internal database of, redistribute, or reproduce the Intellectual Property in any form;
- (e) create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell, sublicence, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, make available to any person or otherwise use, either directly or indirectly, the Services or Intellectual Property in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise; or
- (f) permit, allow or do anything that would infringe or otherwise prejudice the proprietary rights of Comalatech or its licensors or allow any third party to access the Intellectual Property.
(6) Comalatech is not obligated to provide any authorization referred to in paragraph 3(5), Comalatech reserves the right to charge a fee for the grant of any such authorization, and Comalatech may cancel such authorization at its sole and unfettered discretion by providing notice to You of such cancellation.
(7) The restrictions set out in this Agreement, including the restrictions listed at paragraph 3(5), shall not apply to the limited extent that the restrictions are prohibited by applicable law.
4. End User’s Use of Services
(1) The End User shall be solely and exclusively liable for; (i) all information and/or data which the End User posts, uploads, transmits, processes, disseminates or otherwise shares with others by use of, or in connection with, the Services; (ii) informing authorized users of the contents of the Agreement (e.g. including provisions regarding processing of personal data); (iii) the results which the End User achieves by its use of the Services; (iv) any loss, damages, or costs incurred due to incompatibility between the Services or updates to them and any Third Party Products the End User has installed or otherwise uses, and any other issues that may arise as a result of the interaction between the Services and any Third Party Products or similar products; (v) any damage or liability to any party resulting from the End User’s use of the Services; and (vi) any unauthorized use of the Services.
(2) The End User shall not: (i) use the Services in any manner or for any purpose that violates this Agreement, any law or regulation, including but not limited to privacy rights and export laws, any right of Comalatech or any third party, including but not limited to intellectual property rights; (ii) sell, distribute, assign, license, transfer, monitor or copy all or any portion of the Intellectual Property or any source or object code made available as part of the Intellectual Property to any third party; (iii) reverse engineer, decompile, translate, alter, disassemble or create derivative works of the Intellectual Property or parts of the Intellectual Property or attempt to do any of the foregoing; (iv) interfere with or disrupt the Services; or (v) rent, lease, loan or provide any other party access to the Services without Comalatech’s pre-approval in writing.
5. Collection of Data
(1) You agree that Comalatech may collect and use technical data and related information (“Collected Data”) including, without limitation, technical information relating to your device, system, and the Services, that is gathered periodically to facilitate the provision of software updates, product support, marketing efforts, and other services and communications to you related to the Services, including providing you with information about services, features, surveys, newsletters, offers, promotions; providing other news or information about us and our select partners; and sending you technical notices, updates, security alerts, and support and administrative messages.
(2) Comalatech may use the Collected Data in a form that does not personally identify you except to the extent necessary to: provide you with support; communicate to improve products or services; or provide other services to you.
(4) The End User may opt out of promotions by sending an email to email@example.com. Requests to opt out may take thirty (30) calendar days to process.
(5) Some of the Collected Data may include anonymous analytics information including, without limitation, use of the Services by the End User and use of system resources by the Services. The End User may disable the collection of anonymous analytics information through the Administration Module of the Services.
6. Your Data
(1) Your Data means any data, content, code, video, images or other materials of any type that You:
- (a) grant Comalatech access to through the Atlassian Cloud; or
- (b) submit, upload, transmit, or otherwise make available to any of the Services.
(2) Your Data may include Personally Identifiable Information.
(3) You agree that Comalatech may access, copy, store, use, modify, and delete Your Data to provide the Services to You, including any Personally Identifiable Information included in Your Data.
7. Identification of End User in Marketing
(1) The End User grants Comalatech the right to identify the End User as a customer of Comalatech in promotional materials.
(2) The End User grants Comalatech the right to use the End User’s logos and other trademarks to identify the End User in promotional materials. Comalatech receives no other rights to Your logos or other trademarks under this Agreement. All goodwill arising from use of your trademarks belongs to you. For clarity, nothing in this Agreement assigns ownership of any of your intellectual property rights to Comalatech.
(3) The End User may revoke or deny Comalatech the rights granted in 7(1) and 7(2) at any time by submitting a written request to be excluded from promotional materials via email to firstname.lastname@example.org. Requests may take thirty (30) calendar days to process.
8. Third Party Software
(1) The Intellectual Property may contain software licensed to Comalatech from third parties, including software licensed under open source licenses (“Third Party Software”). Additional obligations may apply to any use of Third Party Software outside of the Licenses granted under this Agreement. In such circumstances you must consult the relevant third party to acquire any necessary licenses and consent in relation to your use of the Third Party Software.
(2) The Services may use services provide by third parties, for example APIs and web services. Comalatech disclaims any liability for any failure or limitations of these APIs or services. Atlassian, or any other API provider, may remove the API end points required for the Services to function properly. Comalatech disclaims any liability for the consequences of such actions by such third parties.
9. Links to Other Web Services
(1) The Services may contain links to other websites and services. Comalatech is not responsible for the contents, accuracy, or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Comalatech. Inclusion of any linked website does not imply approval or endorsement of the linked website by Comalatech. If you decide to access these third party sites, you do so at your own risk.
(1) For any Service which the End User has purchased maintenance for through the Atlassian Marketplace, Comalatech will provide online technical support to the End User during the purchased maintenance period.
(2) The provision of online technical support is further governed by Comalatech’s Service Level Agreement (the “SLA”). The SLA can be found at https://www.comalatech.com/serviceLevelAgreement/.
(3) End Users who are entitled to online technical support may request support through Comalatech’s support portal at https://comalatech.com/support.
11. Fees for Services
(1) Comalatech may charge a fee for use of all or some features of the Services. If at any time Comalatech does not charge a fee for any feature of any Service, Comalatech will in no way be barred from charging a fee for that feature in the future. If Comalatech does charge a fee, the fee will be decided in the sole discretion of Comalatech. The current pricing for the Services will be posted by Comalatech on the Atlassian Marketplace.
12. Refusal of Services
(1) Comalatech reserves the right, at its sole discretion, to exclude or otherwise limit the provision of any product or service, including access to or use of any of the Services, to any person or entity, for any reason.
(2) Comalatech reserves the right to block any functionality of any Service for which an End User does not have a valid Evaluation License or Cloud License.
13. Updates to the Services
(1) Comalatech reserves the right, in its sole discretion, to make any changes to the Services, including adding or removing any features of the Services. Comalatech has no obligation to update the Services, and the Services may be changed without notice to you.
14. Evaluation Licenses
(1) Any Service licensed under an Evaluation License may only be used for internal evaluation purposes.
(2) Each Evaluation License expires thirty (30) days after the End User receives a corresponding evaluation activation key. Any Service or any feature of any Service licensed with an evaluation license may cease to operate upon expiration of the corresponding Evaluation License.
(3) The End User may only obtain one Evaluation License per Service, unless otherwise authorized by Comalatech. The End User may request an additional Evaluation License or an extension of an Evaluation License through the Atlassian Marketplace or by contacting Comalatech at email@example.com. Comalatech is not obligated to grant any such request, and Comalatech may deny any such request for any reason.
(1) You agree to indemnify, defend and hold Comalatech and its partners, lawyers, staff, affiliates, successors and assigns (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense, including reasonable legal fees, related to your violation of this Agreement or use of the Services.
16. Disclaimer and Limitation of Liability
(1) THE INFORMATION, FORMS, AGREEMENTS, LICENCES, MEDIA, CONTENT, DIGITAL DOWNLOADS, TANGIBLE PRODUCTS, GOODS AND SERVICES (THE “ITEMS”) PROVIDED FROM OR THROUGH THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE ITEMS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMALATECH AND ITS AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY OF THE ITEMS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMALATECH AND THE AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMALATECH. THE SERVICES AND THE ITEMS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
(2) The Services may not be appropriate under the circumstances for any particular matter. No representations, warranties or guarantees whatsoever are made as to the effectiveness, completeness, adequacy, reliability, suitability, accuracy, currentness, or applicability of any of the Services to a particular situation.
(3) All responsibility or liability for any damages caused by the Services, including, without limitation, damages caused by computer viruses or other malicious code contained within the Services is disclaimed.
17. Ability to Accept the Agreement
(1) You affirm that You are 18 or more years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. The Services are not intended for individuals under 18. If you are under 18 years of age, then please do not use the Services.
(1) This Agreement is effective until terminated by Comalatech, with or without cause, in Comalatech’s sole and unfettered discretion. Comalatech may terminate this Agreement without notice to you if you fail to comply with any of its terms. Any such termination by Comalatech shall be in addition to and without prejudice to such rights and remedies as may be available to Comalatech, including injunctive and other equitable remedies.
(2) The disclaimers, limitations on liability, ownership, termination, interpretation, your licence(s) to and authorizations of Comalatech, your warranty and the indemnity provisions of this Agreement shall survive the termination or expiry of this Agreement.
(3) This Agreement will automatically terminate if You violate or assist in the violation of any of the restrictions of paragraphs 3(4), 3(5), 4(1), 4(2), or 14(1).
(4) On the termination of this Agreement, you must remove all Intellectual Property from your systems and destroy any copies of the Intellectual Property in your possession whether in electronic or printed format.
(1) This Agreement shall be treated as though it were executed and performed in the province of British Columbia, Canada, and shall be governed by and construed in accordance with the laws of the province of British Columbia (without regard to conflict of law principles).
(2) Any of Your causes of action with respect to the Services must be instituted within six (6) months after the cause of action arose or be forever waived and barred.
(3) The language in this Agreement shall be interpreted as to its fair meaning and not construed strictly for or against either party. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
(4) All legal proceedings arising in connection with this Agreement shall be brought solely and exclusively in Vancouver, British Columbia in the Courts of British Columbia. You expressly submit to the exclusive jurisdiction of said courts and consent to extra-territorial service of process.
(5) Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
(6) Failure of Comalatech to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
(7) You agree to review this Agreement prior to using the Services. This Agreement may be amended by Comalatech from time to time without specific advance notice to You. The latest Agreement will be available at https://comalatech.com/end-user-license-agreement/, and You should review the Agreement prior to using the Services.
(8) This Agreement, as modified from time to time as described above, and including the policies incorporated by reference, constitute the entire and only agreements between You and Comalatech and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Services and the subject-matter of this Agreement.
(9) To the extent that anything in or associated with the Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.