End User License Agreement

Exploratory Testing for JIRA

If you have not entered into a valid agreement with Tricentis regarding the use of Tricentis Software, one of the following agreements will apply.

By clicking on the “I accept” button that is presented to you when ordering the Tricentis Software that is made available to you through the Atlassian Marketplace, you, if acting as an individual, or the entity you represent, if acting as a business (in each case “Customer”) agree to be bound by this agreement (“Agreement”) between you and Tricentis, and you confirm that you have the legal authority to bind the entity you represent to this Agreement.

 

A) TRIAL TRICENTIS EXPLORATORY TESTING FOR JIRA
TERMS AND CONDITIONS

If the Tricentis Software is only provided to you for evaluation purposes, your rights are limited to an evaluation license which permits you to use the Tricentis Software for a limited period of time according to the following TRIAL TRICENTIS EXPLORATORY TESTING FOR JIRA TERMS AND CONDITIONS.

Capitalized terms not otherwise defined herein shall have the meaning set forth in Section 7.

1. LICENSE AND TERMS OF USE

1.1 License Grant.  Tricentis hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable and temporary license to use the Tricentis Software for the purpose of evaluating the Tricentis Software for a limited period of time (the “Trial”).

1.2 Restrictions.  The Tricentis Software must not be used for any purpose other than the Trial. The Tricentis Software must not be used for any commercial purpose nor must it be given to third parties, nor must any third party have access to it, whether for a fee or free of charge. Customer may not modify, translate, reverse engineer, decompile, disassemble or otherwise alter or interfere with the Tricentis Software or develop programs based on the Tricentis Software except pursuant to any statutory right that cannot be excluded by contract. Any violations of this Agreement are deemed a breach of contract and Tricentis reserves the right to act on such a breach.

2. OWNERSHIP

2.1 Ownership of Tricentis Software.  As between the parties, Tricentis retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Tricentis Software.  As between the parties, Customer shall retain all rights, title, and interest in and to the Customer Systems.  Except for the rights expressly granted in this Agreement, no license or right is granted to Customer by Tricentis by implication, estoppel, or otherwise.

2.2 Trademarks.  The Tricentis trademarks, logos, and service marks displayed on the Tricentis Software (collectively, the “Tricentis Marks”) are the registered and unregistered trademarks of Tricentis, its affiliates, licensors and suppliers, and/or others.  Nothing contained in this Agreement or the Tricentis Software should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Tricentis Mark(s) without the express written permission of Tricentis.

3. TERMS

3.1 This Agreement will remain in effect for a period of 30 days (“Evaluation Period”), which can be extended by Customer for additional periods of 30 days each (“Renewal Evaluation Period”) up to a total of six months. On the expiry of the Evaluation Period or the Renewal Evaluation Period, the Tricentis Software will cease to function and Customer will delete and remove all copies of the Tricentis Software in its possession or control. Upon termination of this Agreement all rights granted to Customer hereunder shall terminate and Customer shall not, and shall not attempt to, use or access the Tricentis Software.

4. DISCLAIMER

TRICENTIS SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW WILL TRICENTIS BE LIABLE FOR ANY KIND OF DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL OR ANY TYPE OF SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF TRICENTIS HAD BEEN ADVISED OF THE POSSIBILITY OF CUSTOMER INCURRING THE SAME.

5. CONFIDENTIAL INFORMATION

5.1 Restrictions On Use and Disclosure.  Receiving Party shall (a) not use the Confidential Information of the Disclosing Party for any purposes other than for the purpose of performing its obligations or exercising its rights under this Agreement and (b) hold such Confidential Information in strict confidence and protect such Confidential Information with the same degree of care (but no less than a reasonable degree of care) the Receiving Party uses to protect its own similar Confidential Information.  Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party:  (i) to the Receiving Party’s directors, officers, or legal or business advisors to the extent reasonably necessary to carry out its obligations or exercise its rights under this Agreement, provided that such directors, officers, employees, or agents have been advised of the confidential nature of such information and are legally bound to maintain such information as confidential as required by this Section 5 or (ii) as is required to be disclosed by the Receiving Party pursuant to a judicial or governmental statute, rule, or order, provided that the Receiving Party gives the Disclosing Party sufficient notice to permit Disclosing Party to seek a protective order or other opportunity to limit disclosure, and provided that the Receiving Party discloses only such Confidential Information as is required to be disclosed.  This section shall survive the termination of this Agreement for any reason.

6.GENERAL PROVISIONS

6.1 Governing Law.  (i) If Customer is located in Europe, Middle East, Africa or India (“EMEA”), this Agreement shall be governed by the laws of Austria excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the courts competent for the Inner District of Vienna, Austria; (ii) if Customer is located in Asia-Pacific countries (“APAC”), this Agreement shall be governed by the laws of Australia excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the courts located in Sydney, New South Wales; (iii) if Customer is located in North, South or Central America (“Americas”), this Agreement shall be governed by the laws of the State of California excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

6.2 Injunctive Relief.  Each party acknowledges and agrees that any breach of its obligations with respect to Confidential Information and Intellectual Property Rights may cause substantial harm to the other party that could not be remedied by payment of damages alone.  Accordingly, the other party will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.

6.3 Severability.  In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and the remaining provisions of this Agreement will remain in full force and effect.

7.DEFINITIONS

In this Agreement, the following capitalized terms shall have following meanings:

7.1 “Confidential Information” means information furnished to one party (“Receiving Party”) by the other party (“Disclosing Party”), (1) that is marked at the time of disclosure as being “Confidential” or words of similar import or (2) that is identified orally as being confidential or proprietary or is of such a nature or the circumstances of the disclosure are such that a reasonable person would understand that the information should be treated as confidential information.  The Tricentis Software and documentation will be deemed Tricentis’s Confidential Information regardless of whether so marked.  Confidential Information will not include information that the Receiving Party can demonstrate by contemporaneous records:  (a) was rightfully known by Receiving Party prior to the date it was disclosed by the Disclosing Party; (b) is lawfully disclosed to the Receiving Party without obligation of confidentiality by a third party rightfully in possession of such information; (c) becomes generally known to the public through no act or omission on the part of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or reliance upon any Confidential Information of the Disclosing Party.

7.2 “Customer System” means any server system owned, operated, or managed by Customer on which the Tricentis Software is installed.

7.3 “Intellectual Property Rights” means current and future worldwide common law and statutory rights, whether arising under the laws of the United States of America or any other state, country, jurisdiction, government, or public legal authority, in, to, or associated with : (i) patents, utility models, and invention disclosures and applications therefor and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations, and continuations-in-part thereof; (ii) trade secrets, confidential information, or proprietary information; (iii) copyrights, copyrights registrations and applications therefor; (iv) trademarks, service marks, and other designations of source or origin; (v) industrial designs; (vi) all rights in databases and data collections; (vii) all moral and economic rights of authors and inventors, however denominated; (viii) rights to apply for, file for, certify, register, record, or perfect any of the foregoing; and (viii) any similar or equivalent rights to any of the foregoing (as applicable).

7.4 “Tricentis” means: Tricentis GmbH, Leonard-Bernstein-Strasse 10, 1220 Vienna, Austria, if Customer is located in EMEA; (ii) Tricentis APAC Pty Ltd, Suite 4, Level 3, 2-12 Foveaux Street, Surry Hills, NSW  2010, Australia, if Customer is located in APAC; (iii) Tricentis USA Corp, 5150 El Camino Real, Suite D14, Los Altos, CA 94022, if Customer is located in the Americas.

7.5 “Tricentis Software” means “Tricentis Exploratory Testing for JIRA” software as well as all available technology adapters with respect thereto.

B) STANDARD TRICENTIS EXPLORATORY TESTING FOR JIRA
TERMS AND CONDITIONS

If you are not a trial user the following STANDARD TRICENTIS EXPLORATORY TESTING FOR JIRA TERMS AND CONDITIONS will apply.

Capitalized terms not otherwise defined herein shall have the meaning set forth in Section 10.

1. LICENSE AND TERMS OF USE

1.1 License Grant.  Subject to payment of the applicable fees to Atlassian by Customer, Tricentis hereby grants to Customer a non-exclusive, non-transferable, revocable, non-sublicensable license to use the Tricentis Software in the Territory during the applicable license term as specified in the Order (“License Term”) for use by Authorized Users, on the Customer Systems in executable form, solely for Customer’s internal business purposes.

1.2 Usage Limits.  For each license that Customer licenses Customer may install one instance of the software on Customer System. Customer’s access to and use of the Tricentis Software is subject to, and Customer shall comply with, all the terms and conditions set forth in the applicable Order (including the usage limits set forth in such Order), which terms and conditions are incorporated herein by reference. The Tricentis Software may not be simultaneously used by Customer, in the aggregate, by more than the quantity of licenses granted.  Access credentials for the Tricentis Software may not be shared with third parties.  Customer shall be responsible for all use of the Tricentis Software by Authorized Users.

1.3 Restrictions.  Customer shall only use the Tricentis Software for Customer’s internal business purposes and shall not (and not allow or assist any third party to) (a) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Tricentis Software, (b) sell, resell, license, sublicense, distribute, rent or lease any part of the Tricentis Software or include any part of the Tricentis Software in a service bureau or outsourcing offering, or otherwise encumber the Tricentis Software with any lien or grant a security interest in the Tricentis Software, (c) modify any header files or class libraries contained in any part of the Tricentis Software, (d) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Tricentis Software.  Customer shall not remove, alter, or obscure any proprietary rights notices contained in or affixed to the Tricentis Software. Customer shall not, nor will it authorize or encourage Authorized Users to, use the Tricentis Software in any hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage.

1.4 Backups.  Except for maintaining a single archival copy of the Tricentis Software for backup purposes only, Customer shall not make copies of the Tricentis Software.  Nothing herein shall limit or restrict Customer from providing Authorized Users with copies of the Documentation for their internal use, in connection with the license granted in Section 1.1.

1.5 Third-Party Software.  Customer is solely responsible for the installation, maintenance, repair, use, and upgrade of the Third-Party Software the Tricentis Software is used with.  Tricentis disclaims all warranties of any kind with respect to such Third-Party Software.

1.6 Open Source Components.  Customer acknowledges that certain software components of the Tricentis Software may be covered by Open Source Licenses (“Open Source Components”).  To the extent required by the Open Source License for any Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement.  To the extent the terms of the Open Source License applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component.  Tricentis shall provide Customer with a list of Open Source Components upon Customer’s request.

1.7 Customer System Security and Operation.  Any password or other security codes, or routines provided to Customer hereunder for Customer to access or use the Tricentis Software will be deemed Confidential Information of Tricentis.  Customer shall establish appropriate security measures, consistent with industry standards, to protect the Tricentis Software, passwords, security codes, or routines from unauthorized use.  Customer shall notify Tricentis immediately of any actual or alleged unauthorized use of the Tricentis Software, passwords, security codes, or routines.  Notwithstanding anything to the contrary in this Agreement, Customer is solely responsible for the operation and maintenance of the Customer Systems, and Tricentis disclaims all warranties, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto.

2. SUPPORT

Tricentis Support Services.  Subject to the payment of the Fees to Atlassian by Customer, Tricentis (or at Tricentis’ option, Tricentis’ Affiliate) shall provide Customer with support in respect of the Tricentis Software in accordance with the provisions set forth in Exhibit A (“Support Services”). Support Services shall have an initial term of twelve months commencing on the delivery of the Software and will be provided during the period for which Customer has paid the applicable fees.

3. FEES

Fees. Customer will order the Tricentis Software through the Atlassian’s ordering and license management system and pay the corresponding fees pursuant to the applicable Order directly to Atlassian. The scope of the license shall be as stated in this Agreement and Atlassian is responsible for the accuracy of any Order. Atlassian is not authorized to make any promises or commitments on Tricentis’ behalf and Tricentis is not bound by any obligations to Customer other than the terms of this Agreement.

4. OWNERSHIP

4.1 Ownership of Tricentis Software.  As between the parties, Tricentis retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Tricentis Software.  As between the parties, Customer shall retain all rights, title, and interest in and to the Customer Systems.  Except for the rights expressly granted in this Agreement, no license or right is granted to Customer by Tricentis by implication, estoppel, or otherwise.

4.2 Trademarks.  The Tricentis trademarks, logos, and service marks displayed on the Tricentis Software (collectively, the “Tricentis Marks”) are the registered and unregistered trademarks of Tricentis, its Affiliates, licensors and suppliers, and/or others.  Nothing contained in this Agreement or the Tricentis Software should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Tricentis Mark(s) without the express written permission of Tricentis.

4.3 Federal Government End Use Provisions.  Tricentis provides the Tricentis Software, including related software, Documentation, and technology, for ultimate federal government end use, solely in accordance with the following: government technical data and software rights related to the Tricentis Software include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Tricentis to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

5. TERM AND TERMINATION

5.1 Term.  This Agreement will remain in effect during the period of any unexpired License Term, unless terminated earlier pursuant to the terms of this Section 5.

5.2 Termination for Breach.  Either party may terminate this Agreement and/or the applicable Order immediately upon written notice to the other party if the other party breaches this Agreement and fails to correct the breach 30 days following written notice from the other party specifying the breach; provided, however, that in the event that any material breach by Tricentis requires more than 30 days to cure, Customer shall not be entitled to terminate this Agreement or the applicable Order if Tricentis promptly commences to cure such breach and proceeds diligently until cured.

5.3 Termination for Insolvency.  Either party may terminate this Agreement immediately upon written notice to the other party if the other party has a receiver appointed, or an assignee for the benefit of creditors or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable bankruptcy laws.

5.4 Suspension and Termination. Notwithstanding anything to the contrary in this Agreement, if Customer fails to comply with this Agreement, Tricentis may upon prior notice to Customer, suspend or terminate Customer’s license to the Tricentis Software. All Customer rights to use the Tricentis Software under this Agreement will automatically terminate without notice from Tricentis, if Atlassian revokes Customer access to the Atlassian Marketplace.

5.5 Termination for Convenience. Customer may terminate this Agreement at any time with prior notice to Tricentis, provided that Customer will not be entitled to any credits or refunds as a result of such termination for prepaid but unused Tricentis Software and/or Support Services.

5.6 Effect of Termination.  Expiration or termination of this Agreement will not relieve any party of its obligations to pay any amounts accrued or otherwise owed under this Agreement. Customer License Term will end upon any termination of this Agreement even if it is identified as “perpetual” or no expiration date is specified in the Order. Upon termination or non-renewal of this Agreement or the applicable Order, Customer will no longer have any licenses or rights to use or access the Tricentis Software or any information or material made available to Customer hereunder, including Confidential Information. In addition, no later than 10 calendar days after termination Customer shall delete any of the foregoing from Customer System (including any third party systems operated on Customer behalf) and certify the destruction of the same at Tricentis’ request.  Sections 1(excluding Section 1.1), 3, 4, 5, 6, 7, 8, 9 and 10 will survive expiration or termination of this Agreement.

6. LIMITED WARRANTIES AND LIABILITY

6.1 Representations.  Each party represents that it has validly entered into this Agreement and has the legal power to do so.

6.2 Disclaimer.  THE TRICENTIS SOFTWARE IS PROVIDED BY TRICENTIS “AS IS,” AND NEITHER TRICENTIS NOR ITS THIRD–PARTY LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE WITH RESPECT TO THE TRICENTIS SOFTWARE, AND TRICENTIS DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS RELATING THERETO INCLUDING, WARRANTIES OF NON‑INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE.  TRICENTIS DOES NOT GUARANTEE THAT THE TRICENTIS SOFTWARE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED OR MEET CUSTOMER’S OR AN AUTHORIZED USERS’ REQUIREMENTS.

6.3 LIMITATION OF LIABILITY.  EXCEPT FOR A BREACH OF SECTIONS or 1.3, INDEMNIFICATION LIABILITY UNDER SECTION 7, OR A BREACH OF SECTION 8 BELOW, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS:  (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, ANY LOSS OF REVENUES OR PROFITS, OR ANY COST OF COVER ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER FOR THE TRICENTIS SOFTWARE IN THE 12 (TWELVE) MONTHS IMMEDIATELY PRECEDING THE CLAIM.  THE PARTIES AGREE THAT THIS SECTION 6.3 REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF THIS AGREEMENT.  THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AVAILABLE HEREUNDER.

7. INDEMNITY

7.1 Indemnity of Customer.  Tricentis shall defend, or at Tricentis’ option, settle, any claim, demand, suit, or proceeding made or brought against Customer, its directors, employees, and agents by a third party alleging that the use of the Tricentis Software in accordance with this Agreement infringes such third party’s Intellectual Property Rights (a “Claim Against Customer”), and shall indemnify Customer from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided that Customer (a) promptly gives Tricentis written notice of the Claim Against Customer, (b) gives Tricentis sole control of the defense and settlement of the Claim Against Customer, and (c) gives Tricentis all reasonable assistance.  If Tricentis receives information about an infringement claim related to the Tricentis Software, Tricentis may in its discretion and at no cost to Customer (i) modify the Tricentis Software so that it no longer infringes, (ii) obtain a license for Customer’s continued use of the Tricentis Software in accordance with this Agreement, or (iii) terminate this Agreement and any applicable Order upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the applicable Order(s).  The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer’s breach of this Agreement, Customer’s use of the Tricentis Software in combination with technology not provided by Tricentis.

7.2 Indemnity of Tricentis.  Customer shall defend, or at Customer’s option, settle, any claim, demand, suit, or proceeding made or brought against Tricentis, its directors, employees, and agents by a third party arising out of (a) Customer’s violation of the restrictions in Section 1, (b) Customer’s breach of this Agreement, or (c) Customer’s operation of the Customer Systems (a “Claim Against Tricentis”), and shall indemnify Tricentis from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Tricentis as a result of, or for amounts paid by Tricentis under a court-approved settlement of, a Claim Against Tricentis, provided that Tricentis (a) promptly gives Customer written notice of the Claim Against Tricentis, (b) gives Customer control of the defense and settlement of the Claim Against Tricentis, and (c) gives Customer all reasonable assistance.  Tricentis may, at its expense, participate in any such action, suit, or claim with counsel of its choice.

7.3 Exclusive Remedy.  This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for relevant claims described in this Section 7.

8. CONFIDENTIAL INFORMATION

8.1 Restrictions On Use and Disclosure.  Receiving Party shall (a) not use the Confidential Information of the Disclosing Party for any purposes other than for the purpose of performing its obligations or exercising its rights under this Agreement and (b) hold such Confidential Information in strict confidence and protect such Confidential Information with the same degree of care (but no less than a reasonable degree of care) the Receiving Party uses to protect its own similar Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party:  (i) to the Receiving Party’s directors, officers, or legal or business advisors to the extent reasonably necessary to carry out its obligations or exercise its rights under this Agreement, provided that such directors, officers, employees, or agents have been advised of the confidential nature of such information and are legally bound to maintain such information as confidential as required by this Section 8 or (ii) as is required to be disclosed by the Receiving Party pursuant to a judicial or governmental statute, rule, or order, provided that the Receiving Party gives the Disclosing Party sufficient notice to permit Disclosing Party to seek a protective order or other opportunity to limit disclosure, and provided that the Receiving Party discloses only such Confidential Information as is required to be disclosed.

9. GENERAL PROVISIONS

9.1 Governing Law. (i) If Customer is located in Europe, Middle East, Africa or India (“EMEA”), this Agreement shall be governed by the laws of Austria excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the courts competent for the Inner District of Vienna, Austria; (ii) if Customer is located in Asia-Pacific countries (“APAC”), this Agreement shall be governed by the laws of Australia excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the courts located in Sydney, New South Wales; (iii) if Customer is located in North, South or Central America (“Americas”), this Agreement shall be governed by the laws of the State of California excluding conflicts of law, and either party shall submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

9.2 Data Privacy Statement.  Tricentis may collect information and data from Customer, some of which may include personally identifiable information. Tricentis’ handling of personal data is governed by the Tricentis Data Privacy Statement 04/2016 (available at http://www.tricentis.com/legal-information/privacy-policy), which is an integral part of this Agreement. Atlassian will not be responsible for the privacy, security and integrity of any such data as may be collected by Tricentis.

9.3 Injunctive Relief.  Each party acknowledges and agrees that any breach of its obligations with respect to Confidential Information and Intellectual Property Rights may cause substantial harm to the other party that could not be remedied by payment of damages alone.  Accordingly, the other party will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.

9.4 Severability.  In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and the remaining provisions of this Agreement will remain in full force and effect.

9.5 Waiver.  No term or provision of this Agreement will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.  The waiver by either party of any right hereunder, or of the failure to perform or notify of a breach by the other party, will not be deemed to be a waiver of any other right hereunder or of any other breach or failure by such other party, whether of a similar nature or otherwise.

9.6 Publicity.  Customer agrees that Tricentis may identify Customer as a Tricentis customer in Tricentis’ promotional, marketing or other materials and that Tricentis may refer to Customer by name, trade name and trademark as applicable.  Customer hereby grants Tricentis a license to use Customer’s name and applicable trademarks solely to exercise Tricentis’ rights under this Section.

9.7 Exports.  Customer shall comply with all applicable export control laws, rules, and regulations, including the Export Administration Regulations promulgated by the U.S. Department of Commerce, with respect to its use of the Tricentis Software.  Without limiting the foregoing, Customer shall not export or re-export all or any part of the Tricentis Software without Tricentis’ prior written consent.

9.8 Relationship Between the parties.  The relationship between the parties is that of independent contractors, and nothing contained in this Agreement will be construed to constitute as agents, partners, joint venturers, or otherwise as participants in a joint undertaking, or allow Customer to create or assume any obligation on behalf of Tricentis for any purpose whatsoever.

9.9 Entire Agreement.  This Agreement constitutes the entire agreement between Tricentis and Customer regarding the subject matter hereof and supersedes all prior oral and written communications.  Any and all amendments or modifications to this Agreement must be in writing and signed by authorized representatives of both parties.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement, and (3) the Documentation.

9.10 Construction.  The headings in this Agreement are for purposes of convenience only and shall not affect the meaning or construction of the sections to which they relate.  Any use in this Agreement of words denoting the singular include the plural and vice versa.  As used in this Agreement, the words “include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”

9.11 No Construction Against Drafter.  Notwithstanding that one party or its representatives may have prepared the initial draft of this Agreement or any provision or played a greater role in the preparation of subsequent drafts, the parties agree that neither of them will be deemed the drafter of this Agreement and that, in construing this Agreement, no provision hereof will be construed in favor of one party on the ground that such provision was drafted by the other.

9.12 No Third-Party Beneficiaries.  This Agreement will be binding upon and inure solely to the benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

9.13 Force Majeure.  Neither party will be deemed to be in breach of any provision of this Agreement for any failure in performance resulting from acts or events beyond that party’s reasonable control (“Force Majeure”).  If a Force Majeure event continues for more than sixty (60) days preventing a party from performing, either party may terminate this Agreement upon written notice to the other party, provided, however, that the non-performing party may terminate only if the non-performing party is not the cause of the Force Majeure.

9.14 Assignment.  Neither this Agreement nor any rights granted hereunder, nor the use of any of the Tricentis Software may be assigned or otherwise transferred (whether by operation of law or otherwise), in whole or in part, by Customer, without the prior written consent of Tricentis, which consent shall not be unreasonably withheld or delayed; provided, however, that no such consent to an assignment of this Agreement and the rights granted herein will be required in the event of an assignment to Customer’s Affiliate, or in the event of an assignment related to a merger or a sale of substantially all of Customer’s assets; provided that Customer provides notice of such assignment as soon as reasonably practicable and upon such assignment or sale, the rights granted herein shall apply only to the use of the Tricentis Software relating to the business of Customer as it existed prior to such assignment or sale.  Any attempted assignment will be void and of no effect unless permitted by the foregoing.  This Agreement shall inure to the benefit of the parties’ permitted successors and assigns.

10. DEFINITIONS

In this Agreement, the following capitalized terms shall have following meanings:

10.1  “Acceptance Date” means the date on which Customer signs the Master License Agreement/Order Form for Software Licenses.

10.2  “Affiliate” of an entity means any individual, corporation, partnership, or business entity that controls, is controlled by, or is under common control by that entity.  The term “control” as used in this definition includes direct or indirect ownership of more than 50% of the voting or equity shares or interest of a corporation or more than 50% of the beneficial ownership of an entity.

10.3 “Atlassian” means the owner of the Atlassian’ s applications store for plugins and extensions (“Atlassian Marketplace”).

10.4 “Authorized User” means the specific individuals for whom Customer has paid the required fees to Atlassian and which Customer designates for the use of the Tricentis Software.

10.5 “Confidential Information” means information furnished to one party (“Receiving Party”) by the other party (“Disclosing Party”), (1) that is marked at the time of disclosure as being “Confidential” or words of similar import or (2) that is identified orally as being confidential or proprietary or is of such a nature or the circumstances of the disclosure are such that a reasonable person would understand that the information should be treated as confidential information.  The Tricentis Software and Documentation will be deemed Tricentis’ Confidential Information regardless of whether so marked.  Confidential Information will not include information that the Receiving Party can demonstrate by contemporaneous records:  (a) was rightfully known by Receiving Party prior to the date it was disclosed by the Disclosing Party; (b) is lawfully disclosed to the Receiving Party without obligation of confidentiality by a third party rightfully in possession of such information; (c) becomes generally known to the public through no act or omission on the part of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or reliance upon any Confidential Information of the Disclosing Party.

10.6 “Customer System” means any server system owned, operated, or managed by Customer or a Customer Affiliate on which the Tricentis Software is installed.

10.7 “Documentation” means Tricentis’ standard written user documentation that describes the design, functions, operation, or use of the Tricentis Software, as updated by Tricentis from time to time.

10.8 “Intellectual Property Rights” means current and future worldwide common law and statutory rights, whether arising under the laws of the United States of America or any other state, country, jurisdiction, government, or public legal authority, in, to, or associated with : (i) patents, utility models, and invention disclosures and applications therefor and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations, and continuations-in-part thereof; (ii) trade secrets, confidential information, or proprietary information; (iii) copyrights, copyrights registrations and applications therefor; (iv) trademarks, service marks, and other designations of source or origin; (v) industrial designs; (vi) all rights in databases and data collections; (vii) all moral and economic rights of authors and inventors, however denominated; (viii) rights to apply for, file for, certify, register, record, or perfect any of the foregoing; and (ix) any similar or equivalent rights to any of the foregoing (as applicable).

10.9 “Open Source License” means a license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license.

10.10 “Order” means any document specifying the options chosen by Customer for the Tricentis Software and the applicable fees and limitations.

10.11 “Territory” means the territory set forth in the applicable Order, whether an “Area License,” “National License,” or “Global License” as applicable.

10.12 “Third-Party Software” means software not owned by Tricentis and licensed to or used by Customer, whether supplied by Tricentis or a third party.

10.13 “Tricentis” means: Tricentis GmbH, Leonard-Bernstein-Strasse 10, 1220 Vienna, Austria, if Customer is located in EMEA; (ii) Tricentis APAC Pty Ltd, Suite 4, Level 3, 2-12 Foveaux Street, Surry Hills, NSW  2010, Australia, if Customer is located in APAC; (iii) Tricentis USA Corp, 5150 El Camino Real, Suite D14, Los Altos, CA 94022, if Customer is located in the Americas.

10.14 “Tricentis Software” means “Tricentis Exploratory Testing for JIRA” software as well as all available technology adapters with respect thereto.

 

 

Exhibit A

 

SUPPORT SERVICES

 

1. Overview of Tricentis Software Support

Features Tricentis Software Support
Incident Initiation unlimited
Support Portal User Count unlimited

(i) “Incident Initiation” means the number of Support incidents that Customer may initiate or create per calendar year.

(ii) “Support Portal User Count” means the number of Support Portal users that may register with the underlying Customer account.

2. Notification and Prioritization Process; Communication

A Tricentis support representative will be responsible for coordinating with Customer.  All faults shall be logged by Customer via the support portal located at https://support.tricentis.com/community/create_incident.do (the “Support Portal”) in a clear and traceable manner.  Tricentis will examine the reported incident and prepare an initial synopsis within the timeframe set forth below.  If the fault can be fixed within the initial synopsis, the support issue will be closed. Otherwise, the incident will be escalated to the development team or the next relevant level.

In order for Tricentis to respond to Customer’s reports of difficulties or problems with Tricentis Software and assist in diagnosis of faults, Customer must provide adequate information and documentation to enable Tricentis to recreate the problem. Tricentis, following commercially reasonable efforts and failure to recreate the problem, may notify Customer that the problem could not be recreated, located or identified, if such is the case.

Customer may report a fault and give it the classification “Moderate” or “High Priority.”  If Customer classifies the incident as “Critical”, Customer must state so in the reported incident. Such incidents will be escalated towards Tricentis’ Head of Support. An incident can only be classified as “Critical” if the Tricentis’ Head of Support and Customer classify the incident as “Critical” by mutual consent within one business day of notification to Tricentis’ Head of Support. If an agreement on classification cannot be reached within one business day, the issue will be escalated to appropriate Tricentis management.

Tricentis will provide support for the Tricentis Software via support portal web-form.

3. Response Times

Based on Customer’s classification of the incident, Tricentis shall use commercially reasonable efforts to respond to Customer in the response time shown below and provide an initial synopsis of the incident within the following timescales:

Call Priority Response Time
Critical 8 business hours
High 16 business hours
Moderate 24 business hours

“Critical Priority” means the majority or a critical function of the Tricentis Software is inoperable. The problem cannot be circumvented. Providing a workaround leads to a decrease of the Priority to “High Priority”.

“High Priority” means it is difficult to use the Tricentis Software, although the Tricentis Software still works despite the difficulties. There is a workaround for the problem.

“Moderate Priority” means the use of the Tricentis Software is impaired, but not seriously. These are annoying and/or irritating errors.

“Review/Synopsis” means a brief summary of the major issues of an incident, an abridgment or condensation of a work. A synopsis holds either a final workaround or solution if available at that time, or detailed information when and what solution will be available for the respective incident.

4. Support Hours

Support is available 24 hours worldwide from Monday to Friday. Details on support on bank holidays is located at the Support Portal. In case of maintenance downtimes, Tricentis will inform Customer 48 hours in advance.

5. Limitations

Support does not include the correction of, and Tricentis will have no obligation with respect to, any errors, defects, or other problems caused by, or resulting from:  (i) Customer’s failure to implement any Update made available to Customer by Tricentis at no charge for addressing such error; (ii) the Customer System or changes to it; (iii) any alterations or modifications of, or additions to, the Tricentis Software made by parties other than Tricentis or its agents; (iv) use of the Tricentis Software in a manner for which it was not designed or use of the Tricentis Software not in conformance with the Documentation.