BDQ End User License Agreement (EULA)

This End User License Agreement dated 10th June 2020 (the “Agreement”) is between you and Business Data Quality Limited (number 04497196) and its affiliates (“BDQ”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer”, “Licensee” or “you” means your company, and you are binding your company to this Agreement. BDQ may modify this Agreement from time to time, subject to the terms in section "Changes to this Agreement" below. 

By ordering, using or accessing BDQ products and services, you indicate your consent to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not install, copy, download or otherwise use the software.

1 Agreement Scope

This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement covers BDQ software, add-ons or plugins, that you purchase from BDQ directly, or purchase from channels and partners such as: Atlassian's Marketplace, authorised Atlassian Solution Partners, or any other mechanisms which sell BDQ's products and which refer to this agreement.

2 Product types

This Agreement governs BDQ's commercial software products and services ("Software") which may be downloadable, as well as cloud-based services ("Hosted Services").

2.1 Software

Software includes source code, object code, executables and associated media, icons, images, text files, pdfs or other static non-code assets contained within any form of software, printed materials, and “online” and electronic documentation and internet-based services. Software includes products which may have downloadable components. Some product categories may be specific to particular marketplaces. Products for the Atlassian marketplace include plugins for both Server (perpetual license) and Data Center (subscription license) products.

3 Registrations

You may need to register for an account with ourselves or another partner (such as an Atlassian account) so that you can place an order, or receive or access any Software. Any registration information that you provide to us or a third party must be accurate, current and complete. We 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, and you must keep your information up to date.

4 Orders

"Order" means a BDQ order whether by phone, email, or in any other form, or the invoice or other ordering document provided by BDQ or 3rd party partner or marketplace (including for example Atlassian's Marketplace) describing the products, licenses and services you are ordering from BDQ and, as applicable, their permitted scope of use. As applicable, the Order will identify items such as: (i) the Products, (ii) the number of Authorized Users, Term, and any other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include description of additional services.

5 Authorized Users

Unless specified otherwise, only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Authorized Users may be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. 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. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the scope of use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.

6 Software Terms

6.1 License

Subject to the terms and conditions of this Agreement, BDQ grants you a non-exclusive, non-sublicenseable and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement, excluding Hosting Services. The term of each Software license (“License Term”) will be specified in your Order. Your License Term will end upon any termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is specified in your Order. Each Software license allows you to install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement).

6.1 Evaluation licenses

BDQ may in its sole discretion provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality, or other restrictions, including use for a limited period only ("Evaluation Period"). When the Evaluation Period expires, the Software will cease to function, and the Licensee must delete all copies of the Software in its possession.

7 Support and Maintenance

BDQ shall provide maintenance and support services where specified, for the Software, during the period for which you have paid the applicable fee. Any support services provided by BDQ that are not explicitly related to maintenance and support for the Software may require additional fees to be paid.

8 Financial Terms - Atlassian

8.1 Atlassian Apps Delivery

We will deliver the applicable license keys (in the case of Software) to the email addresses specified in your Order when we have received payment of the applicable fees. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that both BDQ and Atlassian have no further delivery obligation with respect to the Software after delivery of the license keys. The delivery of license keys shall be made by Atlassian through the Atlassian Marketplace on behalf of BDQ, unless other arrangements have been made directly with BDQ outside the scope of this Agreement.

8.2 Atlassian Apps Payment

You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order unless otherwise specified in the Order. You can request a refund or exchange/upgrade of your commercial or academic server license up to 30 days after the original date of purchase or as otherwise specified in your Order. After the 30-day period, standard pricing for upgrades will apply and refunds/ exchanges will not be available. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements.

9 Taxes

Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by BDQ, you must pay to BDQ the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to BDQ any such exemption information, and BDQ  will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

10 Restrictions

Except as otherwise expressly permitted in this Agreement, you will not:

10.1 rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party,

10.2 use the Products for the benefit of any third party without prior written authorisation from BDQ.

10.3 incorporate any Products into a product or service you provide to a third party,

10.4 interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use,

10.5 reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law,

10.6 remove or obscure any proprietary or other notices contained in any Product, or

10.7 publicly disseminate information regarding the performance of the Products. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the scope of use.

11 Ownership and Feedback

Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. BDQ and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for BDQ, including without limitation as they may incorporate Feedback (“BDQ Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to BDQ (“Feedback”), which may or may not be in the course of receiving Support and Maintenance. BDQ may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits BDQ's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise. BDQ and its affiliates reserve the right to identify your company as a customer in promotional materials and website. We will never identify individual users.

12 Confidentiality

12.1 Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any BDQ Technology and any performance information relating to the Products shall be deemed Confidential Information of BDQ without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.

12.2 The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document:

12.2.1 was rightfully in its possession or known to it prior to receipt of the Confidential Information;

12.2.2 is or has become public knowledge through no fault of the Receiving Party;

12.2.3 is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or

12.2.4 is independently developed by employees of the Receiving Party who had no access to such information.

12.2.5 The Receiving Party may also disclose 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 the Disclosing Party).

12.3 The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to 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 Product.

13 Term and Termination

Subject to the terms of this Agreement and unless terminated earlier in accordance with this Agreement, the term granted hereunder shall be set out in your License Order. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to BDQ, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including BDQ Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. If any provision of the Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.

The following provisions will survive any termination or expiration of this Agreement: sections "Indemnity for Your Data", section "Payment", section "Taxes", section "Restrictions", section "Ownership and Feedback", section "Confidentiality", section "Term and Termination", section "Warranty Disclaimer", section "Limitation of Liability", section "Dispute Resolution", section "Export Restrictions", and section "General Provisions".

14 Warranty and Disclaimer

14.1 Due Authority

Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

14.2 WARRANTY DISCLAIMER

ALL PRODUCTS ARE PROVIDED “AS IS,” AND BDQ AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT (APART FROM 3RD PARTY IP INFRINGEMENT), TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. 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. BDQ 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 BDQ. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND UNLESS  OTHERWISE EXPRESSIVELY INDICATED IN THIS AGREEMENT, NEITHER BDQ NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY 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 (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH 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. ANY AND ALL LIABILITIES AND WARRANTIES COVERED UNDER THIS AGREEMENT SHALL EXTEND TO AFFILIATES, EMPLOYEES, CONSULTANTS AND OTHER THIRD PARTY AUTHORISED USERS.

15 Indemnification by BDQ

BDQ's liability for infringement of third-party intellectual property rights shall be limited to breaches subsisting in the UK (up to an aggregate amount of £1,000,000) and in the USA (up to an aggregate amount of $1,000,000). This indemnification obligation shall not apply if

15.1 the total aggregate fees received by BDQ with respect to your license to Software in the 12 month period immediately preceding the claim is less than US$50,000;

15.2 if the Product is modified by any party other than BDQ, but solely to the extent the alleged infringement is caused by such modification;

15.3 if the Product is used in combination with any non-BDQ product, software or equipment, but solely to the extent the alleged infringement is caused by such combination;

15.4 to unauthorized use of Products;

15.5 to any Claim arising as a result of Your Data or any third-party deliverables or components contained with the Products; to any unsupported release of the Software; or if you settle or make any admissions with respect to a claim without BDQ's prior written consent.

THIS SECTION "IP INDEMNIFICATION BY BDQ” STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY BDQ UNDER THIS AGREEMENT

16 Limitation of Liability

NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION "LIMITATION OF LIABILITY" SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION "RESTRICTIONS". TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this section "Limitation of Liability"  will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

Dispute Resolution

17.1 Dispute Resolution; Arbitration

In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties through mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.  No party may commence any court proceedings or arbitration proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute under mediation. If the parties do not reach settlement within a period of 60 days, arbitration proceedings may commence only in London, England unless mutually agreed otherwise between the parties. The laws of England and Wales are applicable for all arbitration proceedings. All negotiations and arbitration proceedings pursuant to this section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

17.2 Governing Law; Jurisdiction

This Agreement will be governed by and construed in accordance with the applicable laws of England and Wales and shall be submitted to the exclusive jurisdiction of the English courts. Notwithstanding the foregoing, BDQ may bring a claim for equitable relief in any court with proper jurisdiction.

17.3 Injunctive Relief; Enforcement

Notwithstanding the provisions of section "Dispute Resolution; Arbitration," nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

17.4 Exclusion of UN Convention and UCITA

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

18 Export Restrictions

The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof:

18.1 into (or to a national or resident of) any embargoed or terrorist-supporting country;

18.2 to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals;

18.3 to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or

18.4 otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that

18.4.1 you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and

18.4.2 that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.

19 Changes to this Agreement

We may update or modify this Agreement from time to time, including any referenced policies and other documents. You acknowledge and agree that we have the right, in our sole discretion, to modify these Terms from time to time, and that modified terms become effective on posting. You are responsible for reviewing and becoming familiar with any such modifications. If a revision meaningfully reduces your rights, we 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 our blog, or in the Product itself).Your continued use of the Service after the effective date of the modifications will be deemed acceptance of the modified terms.

If you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew.

20 Assignment

BDQ may assign this Agreement at our discretion at any time. Either party to this Agreement may assign this Agreement to:

20.1 succeeding parties in the case of a merger, acquisition or change of control; or

20.2 if You are a supplier to a government agency; provided, however, that in each case,

20.2.1 BDQ is notified in writing within ninety (90) days of such assignment,

20.2.2 the assignee agrees to be bound by the terms and conditions contained in this Agreement and

20.2.3 upon such assignment the assignee makes no further use of the Software licensed under this Agreement. BDQ may assign its rights and obligations under this Agreement without the consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

21 General Provisions

21.1 Notices

Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Business Data Quality Ltd T/A BDQ, Leytonstone House, 3 Hanbury Drive, Leytonstone, London E11 1GA. Your notices to us will be deemed given upon our receipt.

21.2 Force Majeure 

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

21.3 Entire Agreement

This Agreement is the entire agreement between you and BDQ relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal by any court or administrative body of competent jurisdiction, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written consent (which may be withheld in our complete discretion without any requirement to provide any explanation). If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.

21.4 Waiver

Neither party's failure or delay to enforce their rights, powers or privileges under this Agreement shall be deemed to be a waiver of that party's rights, powers or privileges hereunder.

21.5 Interpretation

The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. 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 the other party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.