Broken Build End User License Agreement
Last updated April 2019
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (“EULA”). YOU ARE NOT AUTHORIZED TO USE THIS SOFTWARE UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS EULA.
This End User Licence Agreement (EULA) is a binding legal agreement between Broken Build LLC (“Broken Build”), a provider of downloadable and cloud-based applications under the Broken Build brand name through the Atlassian Marketplace or any other means that interoperate with applicable products manufactured by Atlassian Pty Ltd (“Atlassian”), and you (either an individual or a single legal entity you represent) whose details are provided to Broken Build upon purchase (hereinafter “Licensee” or “you”) for the materials accompanying this EULA, including the accompanying computer software, associated media, printed materials and any “online” or electronic documentation.
By clicking on the “Accept & install” (or similar) button that is presented to you at the time of your installation, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you may not install, copy, download or otherwise use the Software. If you are agreeing to this EULA on behalf of a company or other organization, you represent that you have the authority to bind that company or organization to this EULA, and the terms Licensee, "you" and “your" refer to that company or organization. If you do not have that authority, you may not install, copy, download or otherwise use the Software.
2. Scope of the Agreement
This EULA governs (a) Broken Build’s commercially available downloadable software products sold, or made available at no charge (“Software”), (b) Broken Build’s Software provided in a hosted or cloud-based environment (“Hosted Services”), and (c) any support services provided by Broken Build relating to the Software or Hosted Services. Software and Hosted Services, together with related Documentation, are referred to herein as “Products”.
3. Account Registration
You may need to register on the Atlassian Marketplace (found here) in order to place orders or access or receive any Products. Any registration information that you provide must be accurate, current and complete. You must also update your information so that Broken Build may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts.
Your order through the Atlassian Marketplace or with an authorised Reseller (“Order”) will specify your authorised scope of use for the Products, which may include: (a) the defined number of installations, the number of specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorised Users”), the number of authorised servers, the number of unique data set platforms, and/or other defined resource utilisation limitations, (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (all of the above, as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support Services renewal, or purchases you make to increase or upgrade your Scope of Use. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product.
5. Grant of License
The Products are licensed, not sold, and no ownership right is conveyed to you, irrespective of the use of terms in this EULA such as “purchase” or “sale”.
(a) This EULA grants you the following rights:
Standard Use. For other than No-Charge Products, Broken Build grants you a perpetual (subject to termination for breach), worldwide, non-exclusive, non-transferable, non-sublicensable license to install and use the Software in object code only, limited to the Scope of Use as designated in your Order.
Hosted Services. Broken Build grants you a monthly (paid in advance) subscription for worldwide, non-exclusive, non-transferable, non-sublicensable use of the Hosted Services, subject to automatic renewal for successive monthly terms unless either Broken Build or you notify the other of non-renewal or Broken Build ceases to make a particular Hosted Service available. If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination. You acknowledge that Hosted Services are on-line, subscription-based products, hosted by Broken Build and/or Atlassian, and that Broken Build and/or Atlassian may make changes to the Hosted Services from time to time.
No-Charge Products. The Broken Build may offer you a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable limited license for certain Products at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms specified by Broken Build and is only permitted for the evaluation period designated by Broken Build. After the evaluation period is expired you must abide by the Standard Use rights, or must remove and delete all copies of the Software in your possession. You may not use No-Charge Products for competitive analysis or similar purposes. Broken Build may terminate your right to use No-Charge Products at any time and for any reason in its sole discretion, without liability to you. You understand that any pre-release and beta products (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Broken Build makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Broken Build may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this paragraph. All information regarding the characteristics, features or performance of Beta Versions constitutes Broken Build’s Confidential Information. To the maximum extent permitted by applicable law, Broken Build disclaims all obligations or liabilities with respect to No-Charge Products, including any Support Services, warranty, and indemnity obligations.
(b) Your license rights under this EULA are worldwide, non-exclusive, non-transferable and non-sublicenseable. You may not sell, transfer or convey the Software to any third party without Broken Build’s prior express written consent. Broken Build reserves all rights not expressly granted to the Licensee in this EULA.
(c) Standard Use licensees are permitted to make one (1) copy of the Software for data protection, archiving and backup purposes only and for no other purpose.
(d) You may only install the Software and make the Software available for use on hardware systems owned, leased or controlled by you, or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this EULA.
(e) This EULA applies whether you purchase Products directly from Broken Build, through the Atlassian Marketplace, through an authorized Reseller or otherwise. If you purchase through a Reseller, your license rights shall be as stated in the Order placed by Reseller for you, and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Broken Build’s behalf, and Broken Build is not bound by any obligations to you other than what is included in this EULA.
6. Third-Party Software
(a) You acknowledge the Products may contain software licensed by Broken Build from third parties, including open source software, and embedded in the Products, and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of the third party software by you which is not in accordance with the use of the Products as permitted under the terms of this EULA. In such circumstances you must consult the relevant third party to acquire any necessary licenses and consents in relation to your use of the third party software.
(b) The Software uses, requires and depends on various third party APIs. Broken Build 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 Software to function properly. Broken Build disclaims any liability for the consequence of such actions by such third parties.
7. Price and Payment
If you have not previously paid the license fee for the Product, then you must pay the license fee within the period indicated in the applicable invoice or as otherwise provided in Broken Build’s pricing terms as published on the Atlassian Marketplace. Failure to pay any license fees by the due date will result in the immediate termination of the license(s) granted under this EULA.
8. Support Services
(a) Broken Build may provide you with online support services related to the Products (“Support Services”), in its discretion and for the sole purpose of addressing technical issues relating to the use of the Products. Support Services also include access to bug fixes, patches, modifications, or enhancements (together, “Releases”) to the Products that Broken Build makes generally commercially available during the “Support Period.” When accepted by you, any such Releases will be considered part of the Products and subject to the terms of this EULA.
(b) The initial Support Period for a Standard Use Product is twelve (12) months starting at the time the Product is purchased, and may be renewed for additional twelve (12) month periods (each, a “Renewal Support Period”) at the then-current rate for Support Services. Renewal Support Periods commence upon the expiration of the prior Support Period regardless of when the Product is purchased.
(c) Use of Support Services, if any, is governed by Broken Build’s policies and programs described in any user manual, in online documentation, and/or other Broken Build-provided materials. Any supplemental software code provided to you as a part of Support Services will be considered part of the Products and subject to the terms of this EULA.
(d) All deliveries of Software will be electronic. For the avoidance of doubt, you are responsible for the installation of any Software.
(e) Broken Build encourages feedback from its customers. If you have any feedback regarding your purchase or use of the Products, please provide that feedback to Broken Build at email@example.com.
9. Data Security & Privacy
(a) You may terminate your licence to the Products at any time by destroying all your copies of the Software or ceasing your access to the Hosted Services. Your license to the Products shall automatically terminate if you fail to comply with the terms of this EULA. Upon termination of your license, you are required to remove all Software from your computer systems and destroy any copies of the Software in your possession.
(a) The Products and all copies thereof are protected by copyright and other intellectual property laws and treaties. Broken Build or its relevant third parties own the title, copyright, and all other intellectual property rights in the Products and all subsequent copies of the Products.
(b) All title and copyrights in and to the Products (including but not limited to any images, icons, text files, pdfs or other static non-code assets contained within the Products), the accompanying printed materials, and any copies of the Products, are owned by Broken Build or its suppliers. This EULA does not grant you any rights to use such content. If the Products contain documentation that is provided only in electronic form, you may print one copy of such electronic documentation. Except for any copies of this EULA, you may not copy the printed materials accompanying the Products.
(c) Other than as allowed by this EULA, you may not (i) reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide non-Authorized Users with access to the Products in whole or part, (ii) use the Products for the benefit of any third party, (iii) incorporate any Products into a product or service you provide to a third party, (iv) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (v) remove or obscure any proprietary notices on the Products or any permitted copies of the Products, or (vi) publicly disseminate information regarding the benchmarking performance of the Products.
(d) You may not copy or embed elements of the Source Code into other applications, or publish, transmit or communicate the Source Code to other parties other than yourself or the entity you represent.
(e) You retain all right, title and interest in and to any Personal Information or Data that you upload, submit or otherwise transmit to or through the Hosted Services or through Broken Build’s online support systems (including https://brokenbuild.atlassian.net/ and any other related platforms used to collect customer feedback or to provide support). Subject to the terms of this EULA, you grant Broken Build a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service.
(a) You agree that all code, inventions, know-how, business, technical and financial information disclosed to you by Broken Build constitute the confidential property of Broken Build (“Broken Build Confidential Information”). Any intellectual property, the underlying technology, and any performance information relating to the Products shall be deemed Broken Build Confidential Information without any marking or further designation. Except as expressly authorised herein, you will hold in confidence and not use or disclose any Broken Build Confidential Information. Your nondisclosure obligation shall not apply to information that you can document: (i) was rightfully in your possession or known to you prior to receipt of the Broken Build Confidential Information; (ii) is or has become public knowledge through no fault of your own; (iii) is rightfully obtained by you from a third party without breach of any confidentiality obligation; or (iv) is independently developed by you or your employees who had no access to such information. You may also disclose Broken Build Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to Broken Build). You acknowledge that disclosure of Broken Build Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by you, Broken Build shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Products.
(b) Broken Build agrees that in the event that Broken Build has access to, either in oral or physical form, Licensee’s confidential or proprietary information, including but not limited to Your Data and information concerning Licensee’s business, products, customers, services, policyholders and/or claimants (“Licensee Confidential Information”), Broken Build shall (i) use such Licensee Confidential Information solely for the purpose of this EULA; and (ii) take reasonable precautions, no less than it would take to prevent the disclosure of its own similar Broken Build Confidential Information, to ensure that it does not disclose Licensee’s Confidential Information to any third party without first obtaining the other party’s prior written consent.
(c) Notwithstanding the above, Broken Build may disclose, and may permit its representatives to disclose, any Licensee Confidential Information (i) to the extent it is required to do so by law or any order or request of any government agency; and (ii) to Broken Build’s representatives to the extent required for the purposes of implementing the transactions contemplated by this EULA.
(d) For Licensee Confidential Information that does not constitute trade secrets under applicable law, these confidentiality obligations will expire three (3) years after the termination of the agreement between Broken Build and Licensee. The recipient of such Licensee Confidential Information will be responsible for any breach of this section by its employees, representatives and agents. Licensee Confidential Information will not include any information that (i) was independently developed by a party without use of or reference to any Licensee Confidential Information belonging to the other party; (ii) was acquired by either party from a third party having the legal right to furnish same to the other party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public.
13. Availability to Data Subjects
Broken Build will provide a Data Subject with a copy of the EULA or any existing contract for subprocessing if the Data Subject requests such a copy. If the EULA or contract for subprocessing contains commercial information, Broken Build may remove such commercial information.
14. Publicity Rights
The Licensee grants Broken Build the right to include the Licensee’s company name, logo, and/or likeness that you provide during registration, and any review that Licensee may provide (in full or in part) to Broken Build, within Product promotional material and on Broken Build’s web site. Licensee can revoke this right at any time by submitting a written request via email to firstname.lastname@example.org, requesting to be excluded from future Product promotional material. Requests made after purchasing may take thirty (30) calendar days to process.
15. Export Restrictions
You may not use or otherwise export or re-export any Product(s) except as authorised by United States law and the laws of the jurisdiction in which the Product(s) was obtained. In particular, but without limitation, the Product(s) may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Product(s), you represent and warrant that you are not located in any such country or on any such list.
16. Disclaimer of Warranties
Save as provided in Sections 18 and 19 below, the Products are provided on an “as is” and “as available” basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance, merchantability, fitness for a particular purpose, or title. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. Broken Build shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Broken Build. To the maximum extent permitted by law, Broken Build does not make any representation, warranty or guarantee that: (a) the use of the Products will be secure, timely, uninterrupted or error-free; (b) the Products will operate in combination with any other hardware, software, system, or data; (c) the Products will meet your requirements or expectations; (d) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted; (e) errors or defects will be corrected; or (f) the Products (or any server(s) that make a Hosted Service available) are free of viruses or other harmful components.
17. Return Policy
Broken Build’s customary business practice is to allow customers to return Software within 30 days of payment for any reason or no reason and to receive a refund of the amount paid for the returned Software. A return means that Broken Build will disable the license key that allowed the Software to operate. Broken Build will not accept returns after the 30-day return period.
18. Infringement; Indemnification
(a) If you purchase a Standard Use license, and if the Software becomes, or in the opinion of Broken Build may become, the subject of a claim of infringement of any third party right, Broken Build may, at its option and in its discretion: (i) procure for Licensee the right to use the Software free of any liability; (ii) replace or modify the Software to make it non-infringing; or (iii) refund any license fees paid by you for the current Support Period for that Software.
(b) Licensee will defend or settle, at Licensee’s expense, any action brought against Broken Build based upon the claim that any modifications by Licensee to the Software not approved by Broken Build or combination by Licensee of the Software with other, third-party, products not approved by Broken Build infringes or violates any third party right, and only to the extent that such modification or combination contributes to such claim; provided, however, that: (i) Broken Build shall notify Licensee promptly in writing of any such claim; (ii) Broken Build shall not enter into any settlement or compromise any such claim without Licensee’s prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Broken Build shall provide Licensee with information and reasonable assistance, at Licensee’s request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Broken Build attributable to such claim.
(c) Licensee agrees to indemnify and hold Broken Build, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of Licensee’s use of the Software, or Licensee’s violation of the EULA or any rights of a third party.
(d) Broken Build assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney’s fees for, any claim based upon any modifications to any of the Software not approved by Broken Build or combination of any of the Software with products not approved by Broken Build, and only to the extent that such modification or combination contributes to such claim.
(e) Broken Build agrees to defend, indemnify, and hold harmless the Licensee and their respective directors, officers, employees, and agents from and against any and all third party claims, losses, damages, suits, fees, judgments, costs and expenses of every nature; including reasonable attorneys’ fees and expenses arising out of, resulting from, or attributable to the Software’s claimed infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right, except to the extent that the infringement or violation has been caused or contributed to by the Licensee or its representatives.
19. Limitation of Liability
(a) Except for the indemnification obligations of Section 18 or breach of Sections 7, 11 or 12, neither party will be liable to any person, with respect to any loss, damage, cost, expense or other claim, for any consequential (such as loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data), indirect, special, punitive or other damages in relation to the Products including, without limitation: (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in the Products); (b) any delay, interruption or other failure in the provision of a Product; or (c) any change in the form or content of a Product. All the foregoing limitations shall apply even if Broken Build has been informed of the possibility of such damages.
(b) Except for the indemnification obligations of Section 18 or breach of Sections 7, 11 or 12, Broken Build’s aggregate liability under any claims arising out of this EULA shall not exceed the fees paid by you for the current Support Period, except where not permitted by applicable law, in which case Broken Build’s liability shall be limited to the maximum extent allowed by such applicable law.
(c) Except for each party’s indemnification obligations or breach of Sections 7, 11 or 12, neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Section 16 are not allowed by applicable law, then the liability of Broken Build, and the remedy of Licensee, shall be limited to: (i) the re-supply of any defective Product; or (ii) the refund of the license fees paid by you for the current Support Period for such defective Product.
(d) These limitations will apply to you even if the remedies fail of their essential purpose.
20. Dispute Resolution
The parties agree that this EULA will be governed by and construed and interpreted in accordance with the laws of Ukraine. Any dispute arising from or relating in any way to this Agreement, or the breach thereof, shall be resolved by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, except as follows: The number of arbitrators shall be one. The place of arbitration shall be Kyiv, Ukraine, but telephonic participation may be permitted by the arbitrator. The language of the arbitration shall be Ukrainian. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Kyiv State Court, Kyiv, Ukraine. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this EULA will remain in full force and effect.
22. No Waiver
No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorised representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
Licensee may assign this EULA to succeeding parties in the case of a merger, acquisition or change of control; provided, however, that in each case, (a) Broken Build is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this EULA and (c) upon such assignment the assignee makes no further use of the Product(s) licensed under this EULA. Broken Build may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this EULA.
24. U.S. Government Users
If you are a U.S. Government end user, Broken Build is providing the Products to you as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted to you by Broken Build for the Products are the same as the rights Broken Build customarily grant to others under this EULA.
25. Revisions to EULA
Broken Build may update, modify or amend (together, “Revise”) this EULA from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, Broken Build will use reasonable efforts to notify you by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on the Broken Build blog, on Atlassian Marketplace (https://marketplace.atlassian.com) or within Broken Build’s published product documentation. If Broken Build revises this EULA during your term of your license or subscription, the revised version will be effective upon your next renewal of a License Term, Support Services, Hosted Services or Subscription Term, as applicable. In this case, if you object to any revisions, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the revised EULA is required for you to continue using the No-Charge Products. You may be required to click through the updated EULA to show your acceptance. If you do not agree to the revised EULA after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the EULA in effect at the time of the Order. You may not revise this EULA without Broken Build’s written agreement (which may be withheld in Broken Build’s complete discretion).
26. Entire Agreement
This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein. This EULA may not be modified or amended by you without Broken Build’s written agreement (which may be withheld in Broken Build’s complete discretion).
In the event of a conflict between the terms of this EULA and the terms of any open source licenses applicable to the Software, for the specific terms in conflict the terms of the open source licenses shall control with regard to the Software, or part-thereof.
27. Contact Information
For communications concerning this EULA, please write to email@example.com.
If you have any concerns about Broken Build’s data protection practices, the contact details of Broken Build’s data protection officer are:
+380 50 562 28 19