In effect since: 1 February 2020
This End User License Agreement ("EULA" or "Agreement") is a binding legal agreement between you, either as an individual or an entity and its Affiliates ("Licensee") and WindTunnel Technologies, a marketing brand of Langsweirdt BVBA, Walweinstraat 8, 8000 Brugge, Belgium ("Licensor") concerning its Software (as defined below). An amendment or addendum to this Agreement may accompany the Software, and any such amendment or addendum shall be considered part of the Agreement.
By installing, copying, downloading or otherwise using the Software, or by clicking a box indicating your acceptance, Licensee agrees to be bound by the terms of this Agreement. If you are entering into this agreement on behalf of an entity, you represent that you have the authority to bind such entity to the Agreement and are agreeing to the Agreement for that entity.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN LICENSEE MUST NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
|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 application within which the Software runs.|
|Authorized User||means a person who accesses and uses the Software under a User License.|
|Cloud Products||means WindTunnel Technologies 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||means 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 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 Agreement.|
|Purchase||means acquisition of a license to use 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 WindTunnel Technologies branded software and 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 Agreement 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.|
The Software is licensed, not sold. Upon Licensee’s acceptance of this Agreement, Licensor grants the Licensee the right to use the Software as follows.
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorized Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. Only the minimum number of backup copies may be made.
Licensor may in its sole discretion provide evaluation copies of the Software, which may have limited functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software ("Evaluation Period") and limits the number of temporary users. On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
Each license granted by Licensor under this Agreement is worldwide, nonexclusive and non-transferable, unless otherwise specified in writing. Licensee agrees not to (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any part of or the whole of the Software; (b) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form any part of or the whole of the Software or any data/information not owned by the Licensee; (c) make the Software available by rental, timesharing, a subscription service, hosting or outsourcing; and (d) directly or indirectly access or use any Embedded Software independently of the rest of the Software.
Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, the term granted hereunder shall be: (a) for a Paid License of the downloaded Software for Server Application – perpetual; (b) for a Paid License of the downloaded Software for Data Center Application – the paid subscription period; (c) for a Cloud Product – the paid subscription period; (d) for an Evaluation License – the Evaluation Period.
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.
Except as otherwise agreed in writing by Licensor, Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
If Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee ("Non-controlled Systems"), the Licensee will ensure the terms of this Agreement are complied with by users of such Non-controlled Systems and the Licensee will indemnify Licensor for all costs, damages and loss Licensor suffers arising from such installation or use of the Software on Non-controlled Systems.
The Licensee must pay all Fees by the due date and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this Agreement.
This Agreement applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software ("Supplemental Software"), unless Licensor provides additional terms with any Supplementary Software.
Licensor may offer support services, and such services may be subject to the payment of additional fees. Any such support services will be the subject of a separate agreement.
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 Agreement. 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.
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 Agreement. 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.
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.
If the Licensee breaches or 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 Section "Notices".
Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), Licensor, any third party owner of Embedded Software, or both are entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this Agreement, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Licensor and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
Without prejudice to any other rights and in addition to any other termination rights in this Agreement, Licensor may terminate with immediate effect, this Agreement if: (a) the Licensee fails to comply with the terms and conditions of this Agreement; (b) Licensee or a third-party commences a judicial or administrative proceeding under a law relating to insolvency for the purpose of reorganizing or liquidating the Licensee or restructuring its debt; (c) a person is appointed or authorized by law or under a contract, to take charge of property of the Licensee for the purpose of enforcing a lien against that property, or for the purpose of general administration of that property for the benefit of the Licensee’s creditors; or (d) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts.
Upon termination of a license granted under this Agreement, the Licensee must at its own cost as soon as is reasonably practicable: (a) cease access to and cease use of the Software; (b) remove all copies of the Software from its computer systems or any Un-controlled Systems, including archival or backup systems; and (c) provide Licensor with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.
Upon at least 30 days notice, Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.
All sections which reasonably should survive termination of this Agreement will survive, such as "Definitions", "Intellectual Property", "Indemnification", "Disclaimer of Warranties", "Limitation of Liability", "Improving Licensor's Products", "Geverning Law, Venue and Exclusions" as well as "General Provisions".
During the term of this Agreement, Licensee grants Licensor the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny Licensor this right at any time by submitting a written request via email to firstname.lastname@example.org and requesting to be excluded from Software promotional material. Requests generally are acted upon within thirty (30) calendar days.
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
Any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) of the Agreement are governed by and construed in accordance with the Laws of Belgium and shall be submitted to the exclusive jurisdiction of the Belgian courts.
Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g., local courts at the Licensee place of residence).
The United Nations Convention on Contracts for the Sale of Goods does not apply.
This Agreement (and any addendum or amendment to it which is included with the Software) is the entire agreement between the Licensee and Licensor relating to the Software and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement.
All notices to Licensor will be sent to: Langsweirdt BVBA, Walweinstraat 8, 8000 Brugge, Belgium or email@example.com.
All notices to Licensee will be sent to the physical address or the email address provided by Licensee upon Purchase of the Software.
Notices sent by mail shall be sent by certified mail or overnight courier and will be considered received upon receipt. Notices sent by electronic mail will be received upon confirmed receipt by the recipient.
Any waiver by Licensor of any default shall not constitute a waiver of any subsequent default. Moreover, any waiver by Licensor must be in writing.
If any term of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
Nothing in the Agreement is intended to, or shall be deemed to establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
In this Agreement, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a party includes its personal representatives, successors or permitted assigns; (c) the headings in this Agreement are inserted for convenience only and shall not affect its construction; (d) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; (e) a reference to one gender includes a reference to all other genders; (f) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (g) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
Licensee may assign this Agreement with Licensor’s prior written consent, which shall not be unreasonably withheld. Licensor may assign its rights and obligations under this Agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.