SharePoint & OneDrive Connector for YouTrack Software as a Service Terms and End User License Agreement

Schedule 1 Details

Date of Agreement

The date upon which the Customer is granted access to the Application Service pursuant to these Terms of Service and End User License Agreement (Terms and EULA).

Parties

Provider (Developer)


Name	Adeptask Pty Ltd (Adeptask, Developer, Provider, we, us, our)
ACN	686 658 391
Address	Level 28, 333 Collins Street, Melbourne VIC 3000
Email	hello@adeptask.com

Customer

The party accessing and using the Application Service pursuant to these Terms and EULA.

(Customer, You, Your)

Background

A. The Provider owns and operates the Adeptask software (the Application Service).
B. The Customer wishes to access and use, and (where applicable) allow its employees and contractors and own customers to access and use, the Application Service.
C. The Provider agrees to license the Application Service to the Customer on the terms of these Terms and EULA.
D. The Customer agrees to pay the Fees to the Provider.
E. The parties each agree to the Terms and EULA as set out below.

Schedule Customer Terms

Item	Description	Details
Item 1.	Maximum number of Assigned Seats	Pursuant to the number of Seats purchased.
Item 2.	Commencement Date:	The day following the date of the agreement, unless otherwise set out by the Provider in your receipt/invoice.
Item 3.	Term	The Term set out by the Provider in your receipt/invoice for the number of Seats purchased, beginning on the Commencement Date.
Item 4.	Fees	As set out by the Provider, in your receipt/invoice and/or notification for the number of Seats purchased, beginning on the Commencement Date.
Item 5.	Liability Cap Amount	The amount equal to the Fees paid for the Application Service from which the liability arose in the 12 months prior to the liability arising.

Agreement

Subject to these Terms and EULA (License) and subject to You complying with them, the Provider grants You a limited, worldwide, non-exclusive, non-transferable, revocable License to download, install, access and Use the Application Service and Provider Material for up to the number of Assigned Seats included in your purchased license for the Approved Purpose.

1. Term

(a) These Terms and EULA commence on the Commencement Date of the Term, trial period or renewal period and continues for the Service Period unless terminated in accordance with this Agreement.

2. Use of the Application Service

(a) The Customer and its Users may use the Application Service and the Provider Materials on the terms set out in these Terms and EULA for the Service Period.
(b) The Customer agrees that it must procure and ensure that all Users and Representatives must comply with the terms of these Terms and EULA and End User Licence Agreement at all times.
(c) Only the Customer and its Users working within the Customer’s organisation for the Customer’s benefit may use the Application Service and the Provider Materials.
(d) The Customer and its Users must not:
- (i) share the use of the Application Service or any of the Provider Materials with any third party;
- (ii) resell the Application Service or any of the Provider Materials;
- (iv) sub-license the use of the Application Service;
- (v) copy any of the Provider Materials;
- (vi) use the Application Services, or any information gathered through the use of the Application Services, in a way which is in breach of any statute, regulation, law or legal right of any person;
- (vii) create any derivative work from, frame, mirror, publish, distribute or make available to any third party, the Application Service or the Provider Materials in any form or media or by any means; or
- (viii) reverse engineer any of the Application Service or any of the Provider Materials to determine any design structure, concepts or methodology behind any of them or to incorporate any of them in any other software or product or for any other purpose.
(e) The Customer is responsible for ensuring that its Users and Representatives comply at all time with the terms of these Terms and EULA and will be liable to The Provider for the consequences of each failure to comply with these Terms and EULA and End User Licence Agreement by any of the Customer’s Users or Representatives.

2.1. Customer Users

(a) During the Service Period, the Application Service and the Provider Materials may not be used by more than:
- (i) the maximum number of Seats during the Service Period as set out in the Customer’s invoice or receipt from the Provider.

and may only be used by the identified Customer Users.

(b) If the Customer wishes to add more Customer Users at any time during the Term, or any future Service Period, the Customer must purchase the right to add them from the Provider.
(c) The right for additional Customer Users to be able to use the Application Service must be purchased in tranches as determined by the Provider.
(d) The addition of any Customer User will be subject to the Customer paying additional Fees at the Provider’s then standard rates.

2.2. Trial Period (if applicable)

(a) The Customer may use the Application Service during a trial period set by the Provider, subject to:
- (i) the Customer paying the Provider any specified trial period fee;
- (ii) the number of Users/Seats not exceeding the maximum number of Users/Seats during the trial period; and
- (iii) the Customer complying with the terms of these Terms and EULA during the trial period.
(b) At the end of the trial period, the Customer must either:
- (i) immediately stop using the Application Service and the Provider Materials; or
- (ii) pay the Fee for the Application Service, as set out by the Provider, to commence the Term.

2.3. Open Source Software

(a) Access to the Open Source Software is provided subject to the terms imposed by the licensor of that Open Source Software. The Customer agrees to be bound by those terms, in addition to the terms set out in these Terms and EULA.
(b) No fee is payable in respect of the use of any of the Open Source Software unless a fee is disclosed to the Customer by the Provider
(c) The Customer acknowledges and agrees that any Open Source Software is made available “as is”, without any warranty from the Provider and is subject to the disclaimer in clause 11.2.

3. Provision of Application Services

3.1. Provider obligations

(a) From the Commencement Date and for the duration of the Term, including any further Service Period, the Provider will provide the Application Services in accordance with these Terms and EULA.

3.2. Customer obligations

The Customer must:

(a) provide all necessary information, documentation and assistance required by the Provider to provide the Application Service;
(b) maintain any licenses or authorisations required for the purposes of receiving the Application Service; and
(c) co-operate, and ensure its Users and Representatives co-operate, with the Provider as the Provider reasonably requires.

3.3. Customer and User Facilities

The Customer:

(a) must procure, and keep in good working order, all Customer’s Facilities in a way that meets the requirements in the Documentation;
(b) is solely responsible for resolving all problems, delays or delivery failures and all loss and damage arising from or relation to the Customer’s Facilities; and
(c) acknowledges that the Provider is not responsible for any problems, delays or delivery failures and all loss and damage arising from or in relation to the User’s Facilities.

3.4. Application Service Changes

(a) The Provider may amend or upgrade the Application Service. The Provider will advise the Customer of any such change by providing written notice to the Customer or, if appropriate, publishing the information on the Provider website.
(b) The Provider does not guarantee that any change, addition, deletion, error correction or patch will be compatible with the Customer’s Facilities or with any application, other software or interface that connects to or interfaces with the Application Services.

4. Service assistance requests

(a) The Provider may, in its sole discretion, accept or reject any assistance requests from the Customer or Users.
(b) Requests for assistance should be made by:
- (i) using the support portal; or
- (ii) emailing the Provider at support@adeptask.com.
(c) If the Provider agrees to provide any requested assistance, the Provider may charge the Customer for that assistance at the Provider’s standard rates in force at that time, and will communicate those rates or direct the Customer to those published rates prior to providing the requested assistance.
(d) The Provider is not obliged to provide any consultancy, installation, configuration, integration or development services (collectively, Professional Services) or training to the Customer.
(e) If the Customer requests any Professional Services, and the Provider agrees to provide them, the parties will record the Professional Services to be provided and the fees payable for them in writing, to be agreed to in writing on behalf of each party. The terms of these Terms and EULA will apply to the provision of those Professional Services, in addition to any further Professional Services terms to be mutually agreed between the parties.

5. Fees and payment terms

5.1. Fees

(a) In consideration of supply of the Application Service, the Customer will pay (unless otherwise directed by the Provider):
- (i) any trial period fee in full on the date of these Terms and EULA;
- (ii) the Fee for the Term in full within 7 days after the date of the Provider’s invoice for the Term;
- (iii) all other fees, charges and expenses payable under these Terms and EULA within 7 days after the date of the Provider’s invoice for the same.
(b) The Customer agrees and acknowledges that the Provider may review its Fees:
- (i) at the end of the Term; and
- (ii) at the end of any renewed term or period.
(c) The Provider is not obliged to provide any service except the Application Service and the Provider Materials. The Provider reserves the right to charge the Customer, and the Customer will pay the Provider, the Provider’s standard rates from time to time for any additional service supplied by the Provider.
(d) In the event that the Customer does not comply with this clause 5.1, then, in addition to any other rights or remedies, the Provider is entitled in its sole discretion to:
- (i) charge the Customer interest on amounts not paid at a rate equivalent to 2% per annum plus the cash rate set by the Reserve Bank of Australia, calculated daily from the due date to the day of payment of the debt;
- (ii) suspend all or any part of its obligations under these Terms and EULA without notice to the Customer; and/or
- (iii) terminate these Terms and EULA without further notice.
(e) The fees and charges payable under these Terms and EULA are not refundable.
(f) The fees and charges payable under these Terms and EULA are exclusive of GST and VAT unless otherwise noted and You are responsible for payment of GST and VAT to the Provider if required or, if applicable, to any Government or government authority or agent.

6. Intellectual Property

6.1. Provider Material

(a) The Provider owns all right, title and interest in and to the Provider Material.
(b) The Provider hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable, non-perpetual, revocable and worldwide license to use the Provider Material by and for itself and strictly for the Approved Purpose.
(c) The Customer must not, and must ensure that its Users and Representatives do not, use the Provider Material for any purpose other than the Approved Purpose.

6.2. Customer Material

(a) The Customer remains the owner of the Customer Material.
(b) The Customer grants to the Provider a royalty-free, worldwide, non-exclusive license to use, modify and adapt the Customer Material for the Service Period and strictly for the purpose of performing its obligations under these Terms and EULA.

6.3. Intellectual Property Rights warranties

The Customer warrants to the Provider that:

(a) to the extent that Customer Material or Customer Data contains Personal Information, it has obtained the necessary consents required to transfer or permit access to this personal information (if applicable); and
(b) the Customer Material and Customer Data does not infringe, and the Customer or the Provider’s use of the Customer Material as contemplated under these Terms and EULA does not infringe, any Third Party IP.

7. Confidentiality and privacy

7.1. Confidentiality obligations

The parties acknowledge and agree that each of them must:

(a) not disclose the other party’s Confidential Information to any person except as permitted under clause 7.2;
(b) only use or copy the other party’s Confidential Information for the purposes of these Terms and EULA; and
(c) take all steps reasonably necessary to secure the other party’s Confidential Information against theft, loss or unauthorised disclosure.

7.2. Permitted disclosures

The Customer or the Provider (Disclosing Party) must not disclose the Confidential Information of the other party except:

(a) to a Representative of the Disclosing Party who needs to know the Confidential Information for the purposes of these Terms and EULA;
(b) with the other party’s prior written consent, which must not be unreasonably withheld;
(c) as required to be disclosed by any law or the listing rules of any stock exchange where that party’s securities are listed or quoted; or
(d) as expressly permitted by these Terms and EULA.

7.3. Return and destruction of Confidential Information

(a) Within 10 Business Days of expiry or termination of these Terms and EULA or at the request of the party to whom the Confidential Information belongs, each party must, at the other party’s option, return, erase or destroy any Confidential Information belonging to the other party in all documents and other materials in any medium in the possession or under the power or control of the party or any of its Representatives.
(b) If a party must retain the other party’s Confidential Information for the purpose of:
- (i) complying with any law;
- (ii) litigation;
- (iii) internal quality assurance and record-keeping; or
- (iv) performing its obligations or exercising its rights under these Terms and EULA,

it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 7.3 promptly after it is no longer required for this purpose.

7.4. Privacy

The Provider handles information it collects in accordance with its Privacy Policy, available on the Provider website.

8. Customer Data

8.1. Ownership

(a) The Customer is the owner of all Intellectual Property Rights in and to the Customer Data.
(b) The Customer must ensure that the Customer Data does not contain anything which:
- (i) is offensive, abusive or menacing;
- (ii) is unlawful;
- (iii) is an invasion of privacy;
- (iv) infringes any Third Party IP;
- (v) incites, or is capable of inciting, violence, racial hatred, cruelty or which encourages any unlawful or illegal act or omission.
(c) The Customer grants the Provider a non-exclusive, non-transferable, non-assignable, royalty- free, irrevocable, worldwide license to access, copy, modify and store the Customer Data to the extent necessary for the purposes of providing the Application Service and performing its obligations under these Terms and EULA.
(d) The parties agree and acknowledge the Provider does not edit or control the Customer Data and the Provider will not be held responsible in any way for the content of any Customer Data.

9. Provider Materials

(a) The Provider reserves the right to remove any of the Provider Materials from the Application Service.
(b) Where reasonably practical, the Provider will endeavour to notify the Customer in writing prior to the effective date of the removal of the Provider Material.
(c) Without limiting the generality of clause 9(b), the Customer acknowledges that from time to time, the Provider is licensed by third parties to use such third parties’ brands, logos and other Intellectual Property rights in relation to the Application Service and the Provider Materials and that the Provider may, from time to time, be obliged to remove the Provider Material from the Application Service where the Provider’s right to use such Third Party IP expires, is revoked or terminated.

10. Third Party Materials

(a) If the Application Service allows the Customers to access the website or content of any third party which is not under the Provider’s control, this access is undertaken at the Customer’s risk.
(b) The Provider does not endorse or approve any third party website or content made available via the Application Service and the Provider will have no liability in relation to any website or content provided by any third party.
(c) The Customer acknowledges and agrees that:
- (i) the internet, the world-wide-web, telecommunications networks and services and the Customer Data are outside the Provider’s control; and
- (ii) the Provider will not be responsible or liable for any error, omission, delay in the same, or the inability to use such service or for any content introduced by any such service.

11. Representations and Warranties

11.1. Representations and warranties as to capacity

Each party represents and warrants to all other parties that as at the Commencement Date and for the Service Period each of the following statements is true in respect of that party and will be true for the Service Period:

(a) (if a corporation) it is validly incorporated;
(b) (if a corporation) it has taken all corporate action necessary to authorise the execution of these Terms and EULA to render these Terms and EULA legally enforceable in accordance with its terms;
(c) all authorisations and consents, including by any government agency, that are required or will be required to execute and perform the obligations under these Terms and EULA have been lawfully obtained;
(d) it has full legal capacity, power and authorisation to enter into these Terms and EULA; and
(e) the execution and performance by it of these Terms and EULA does not breach its Constitution, any agreement binding on it or any applicable laws.

11.2. Application Service warranties and exclusion of warranties

(a) The Provider does not warrant that the Application Service or any associated services and support and deliverables will be uninterrupted, error-free, or completely secure, nor that any particular result or objective can or will be achieved by the Customer or Users through their Use of the Application Service, nor that the Application Service will work as intended on or in the Customer Facilities or User Facilities. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of Your privacy, confidential information and/or content. To the maximum extent permitted by applicable law and except for any exclusion which would contravene any statute or cause this clause to be void, the Provider provides the Application Service and associated services and support and deliverables “as is” and with all faults and without warranty of any kind, including but not limited to, express or implied or statutory or other warranties or conditions, including warranties of merchantability, satisfactory quality, fitness for a particular purpose, lack of viruses, accuracy, results, lack of negligence and those arising out of course of dealing, usage, or trade. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your content and applications.
(b) The Customer further acknowledges and agrees that:
- (i) the Application Service and the Provider Materials are a standard service and standard materials provided to the Provider’s customers generally;
- (ii) the Application Service and the Provider Materials have not been developed to meet the Customer’s specific requirements or for compatibility with the Customer’s Facilities; and
- (iii) it is the Customer’s responsibility to check that the features, facilities and functions of the Application Service meets their requirements.

12. Liability

12.1. Loss

Without limiting any other rights a party may have, including under any other provision of these Terms and EULA, the Customer indemnifies the Provider against any Loss or Claim incurred or suffered by the Provider:

(a) as a direct result of any breach of these Terms and EULA by You or your Representatives or Customer Users; and
(b) as a result of any infringement of the Intellectual Property Rights of a third party by You or your Representatives or Customer Users, including but not limited to the infringement of any Intellectual Property Rights of any third party by either or both of the Customer and the Provider where the intellectual property of that third party has been supplied by the Customer to the Provider or where access to the intellectual property rights of that third party has been facilitated by or requested by the Customer.

12.2. Limitation on liability and exclusion of Consequential Loss

(a) To the fullest extent permitted by law, the total aggregate liability of the Provider to You under or in connection with these Terms and EULA in respect of all Losses and Claims is limited to the Liability Cap Amount.
(b) The Provider is not liable to You for any kind of Consequential Loss arising out of or in connection with these Terms and EULA; and the Provider is not liable for any loss to the extent that the loss is directly or indirectly attributable to the Customer’s breach of any part of these Terms and EULA or the Customer’s use of any aspect of the Application Service for any purpose other than the purposes expressly set out in these Terms and EULA.

12.3. Implied terms

(a) Subject to clause 12.3(b), any condition or warranty which would otherwise be implied in these Terms and EULA is excluded.
(b) Pursuant to s 64A of the Australian Consumer Law, this clause applies in respect of any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited to:
- (i) the cost of re-supplying the Application Service; or
- (ii) making full payment for the cost of re-supplying the Application Service.

12.4. Australian Consumer Law

Nothing in these Terms and EULA is intended to limit or exclude the Customer’s consumer guarantees under the Australian Consumer Law.

13. Force Majeure Event

13.1. Notice

A party affected by a Force Majeure Event must as soon as practicable provide notice to all other parties specifying the date and nature of the Force Majeure Event, as well as the anticipated duration of the suspension of its obligations under these Terms and EULA.

13.2. Consequences of a Force Majeure Event

If a party is directly and adversely affected by a Force Majeure Event, a party is excused from performing its obligations under these Terms and EULA (other than its obligation to pay money and provide requisite notice) for the period of delay arising directly from that Force Majeure Event.

13.3. Mitigation and resumption of obligations

A party affected by a Force Majeure Event must:

(a) use all reasonable efforts to overcome the effects of the Force Majeure Event; and
(b) resume performance of its obligations under these Terms and EULA as soon as possible after the Force Majeure Event has abated to the extent necessary to permit a resumption of performance.

13.4. Party not liable for damages

Without limiting the generality of clause 13.2, it is acknowledged and agreed by the parties that, where a party is prevented from complying with its obligations under these Terms and EULA as a result of a Force Majeure Event, that party is not liable for Loss of any kind, including for Consequential Loss, arising out of or resulting directly from that failure to comply.

13.5. Termination following a Force Majeure Event

If a Force Majeure Event prevents performance of one or more of the material obligations under these Terms and EULA and the delay caused by the Force Majeure Event continues for a period of 30 days, any party may by written notice to all other parties terminate these Terms and EULA without liability for breach of contract.

14. Disputes

(a) The parties must use reasonable endeavours to resolve any dispute through negotiation.
(b) If, within 10 business days the dispute cannot be resolved following negotiation between the parties, either party may refer the dispute for mediation.
(c) The parties agree to negotiate in good faith to agree on the appointment of a mediator, or failing agreement, as appointed by the President of the Law Institute of Victoria and located in the State of Victoria, Australia.
(d) The costs of the mediator are to be borne equally between the parties.
(e) If a party fails to adhere to the terms of this clause 14 and proceedings are subsequently issued by the defaulting party, this clause can be used as a bar to any proceedings so issued.
(f) If the dispute cannot be resolved through mediation, either party may commence proceedings.

15. Termination

15.1. Termination for cause

In addition to any other express right of termination granted to a party under these Terms and EULA, the Provider may terminate these Terms and EULA by giving notice with immediate effect if You commit a breach of your material obligations under these Terms and EULA.

15.2. Events following termination

On termination of this Agreement, the Customer will and will procure that the Users will also:

(a) immediately cease Use of the Application Service, Provider Materials and any Intellectual Property Rights that belong to the Provider, and follow all reasonable directions of the Provider concerning the removal or uninstallation of the Application Service on any of the Customer’s systems, computer hardware or software;
(b) upon reasonable request of the Provider, provide to the Provider all hard copies of the Provider Materials, the Confidential Information, and all other items of the Provider’s property, in the Customer’s possession or control (and will, notwithstanding the provision of such items, continue to be bound by the Customer’s confidentiality obligations in this Agreement);
(c) upon reasonable request of the Provider, provide to the Provider a copy of all soft copies of the Provider Materials, the Confidential Information, and then erase and destroy all remaining soft copies of the Confidential Information, in the Customer’s possession or control (and will, notwithstanding the provision, erasing and destruction of such items, continue to be bound by the Customer’s confidentiality obligations in this Agreement);
(d) take such action as reasonably directed by the Provider for the protection and preservation of the Confidential Information, the Intellectual Property Rights of the Provider and each Related Entity of the Provider and all items of the Provider’s property; and
(e) not do any act or thing which may injure, impair or reduce the goodwill or reputation of the Provider.

15.3. Preservation of rights

On termination of these Terms and EULA under this clause 15, each party retains its rights against the other parties in respect of any past breach, in addition to any other rights, powers or remedies provided by law.

16. Interpretation and precedence

16.1. Definitions

In these Terms and EULA:

Acceptable Use means use of the Application Service and Provider Materials in ways consistent with these Terms and EULA and which do not break any laws, breach any export control laws or which reverse engineers or otherwise infringes on the Intellectual Property of the Provider.

Agreement means the agreement between the parties made up of these Terms and EULA and any schedule or annexure to it that the parties sign for the Customer to use and access the Application Service and Provider Materials from the Provider.

Application Data (Content) - Data created by the Customer’s use of the application.

Application Service means the software known as Adeptask SharePoint & OneDrive Connector for YouTrack (or as re-named or re-configured by the Provider from time to time) and other features available on the platform provided by the Provider from time to time pursuant to these Terms and EULA;

Approved Purpose means for the purpose of receiving and using the Application Service in the ordinary course of the Customer’s personal requirements or business.

Australian Consumer Law means the Competition and Consumer Act 2010 (Cth);

Business Day means a day that is not a Saturday, Sunday or public holiday in the State of Victoria;

Business Hour means one hour between the hours of 8am to 5pm Australian Eastern Time during a Business Day.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including these Terms and EULA), in tort ( including negligence), at common law, in equity, under statute, under an indemnity or otherwise;

Commencement Date means the date listed in the Schedule.

Confidential Information means all confidential, non-public or proprietary information exchanged between the parties before, on or after the Commencement Date relating to the business, technology or other affairs of each party or which comes into a party’s possession pursuant to, or as a result of, any negotiations or discussions in connection with these Terms and EULA including the existence, nature and terms of these Terms and EULA, whether disclosed verbally, in writing, in electronic form or by any other means;

Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement:

(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of, damage to, breach of, or corruption of data;
(c) breach of security;
(d) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, reputation anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under these Terms and EULA;
(e) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(f) loss or damage of the nature set out above in clauses (a) to (e) (inclusive) that is incurred or suffered by or to a third party;

Corporations Act means the Corporations Act 2001 (Cth);

Customer means the party identified in these Terms and EULA as the Customer, and includes its Representatives, subsidiaries and related bodies corporate;

Customer Data means:

(a) any information, text, drawings or other materials which are embodied in any electronic or tangible medium and which are supplied by the Customer to the Provider or which the Provider is required to generate, collect, process, store or transmit under these Terms and EULA;
(b) Personal Information;
(c) Confidential Information belonging to the Customer,

but excludes (to the extent that it does not fall within the above categories in (a) - (c) inclusive):

(d) the Provider Material; and
(e) Confidential Information belonging to the Provider;

Customer’s Facilities means the servers, hardware, equipment, operating systems, software, data feeds, databases, network connections and telecommunications links from their systems (except the Provider System) necessary for the Customer and the Users to receive and use the Application Service and the Provider Materials;

Customer Material means all Material owned by the Customer or licensed to the Customer by a third party which is provided by or on behalf of the Customer to the Provider for the purposes of these Terms and EULA and includes:

(a) any modifications or revisions to or enhancements of the Customer Material made after the Commencement Date;
(b) any Material derived from the Customer Material after the Commencement Date, but excludes:
(c) the Provider Material; and
(d) Developed Material,

Customer Terms means the terms specified in the Schedule, containing the details of the Agreement such as (but not limited to) the descriptions of the Application Service, Fees and Term.

Developed Material means all Material in any form (whether visible or not) brought or required to be brought into existence by or on behalf of the Customer pursuant to these Terms and EULA, other than Third Party IP;

Documentation means the user documentation included with the Application Service;

Provider Material means any material (including know-how, technique, methodologies, concepts and ideas) owned by the Provider or licensed to the Provider by a third party or developed by the Provider or licensed to the Provider and provided to the Customer in connection with the Application Service.

Fees means the fees payable by the Customer to the Provider pursuant to these Terms and EULA, as initially stipulated in the Schedule and revised by the Provider from time to time pursuant to clause 5;

Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement;

GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Intellectual Property Rights includes all industrial and intellectual property rights, and includes any patents, registered designs, copyright (including future copyright), trade or service marks (whether registered or unregistered), trade secrets, know-how, rights in relation to circuit layouts, or other proprietary right, and applications for, and rights to apply for, registration of any of the foregoing;

Liability Cap Amount means the amount specified in the Schedule;

License means the license granted to Use the Application Service pursuant to these Terms and EULA;

Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs;

Material means material in whatever form, including without limitation documents, specifications, reports, products, equipment, information, data, graphic layouts, images and software;

Customer Users means those Users whose access the Application Service and/or Provider Materials pursuant to these Terms and EULA;

Open Source Software means any open source software made available to the Customer from time to time as part of the Application Service;

Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws;

Privacy Laws means all domestic and international privacy data protection and anti-spam laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party;

Representative means, in respect of a party, any person acting for or on behalf of the party;

Service Period means the period for which the Customer has paid the Fees, and includes any trial period and renewal period;

Seats means the number of Users the Customer is allowed to have using the Application Service as part of the License Service Period. In the case of YouTrack apps;

Third Party IP means Intellectual Property Rights in Material owned by a third party;

Use means the limited, non-exclusive, non-transferrable use of the Application Service hosted by the Licensor, for the Approved Purpose.

User means an employee, contractor, agent, officer (or similar) or customer of the Customer (and, in the case of a Customer who is an individual, means the Customer) who use or have used the Application Service or any of the Provider Materials;

User Data means any data or information created by a User and posted, uploaded or otherwise made available by the User to the Provider;

User’s Facilities means servers, hardware, equipment, operating systems, software, data feeds, databases, network connections and telecommunications links from their systems (except the Provider System) necessary for the User to receive and use the Application Service and the Provider Materials; and

VAT means any value-added tax (or like tax) levied by any Government or government authority anywhere worldwide.

16.2. Interpretation

In these Terms and EULA:

(a) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) words such as including or for example do not limit the meaning of the words preceding them;
(c) a reference to a document or instrument, including these Terms and EULA, includes all of its clauses, paragraphs, recitals, parts, schedules and annexures;
(d) a party includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
(e) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally;
(f) no provision of these Terms and EULA will be construed to the disadvantage of a party merely because that party was responsible for preparing these Terms and EULA or including the provision in these Terms and EULA;
(g) all monetary amounts are expressed in the currency presented to the Customer by the Provider; and
(h) parties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria, Australia.

17. General

17.1. Notices

(a) A notice or other communication connected with these Terms and EULA (Notice) has no legal effect unless it is in writing and signed by the sender or a person authorised by the sender.
(b) In addition to any other method of service provided by law, the Notice may be sent by email to the email address of the addressee.

17.2. Entire understanding

These Terms and EULA:

(a) is the entire agreement and understanding between the parties on everything connected with the subject matter of these Terms and EULA; and
(b) supersedes any prior agreement or understanding on anything connected with that subject matter.

17.3. Waiver

Waiver of any power or right under these Terms and EULA:

(a) must be in writing, signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in the written waiver.

17.4. Assignment

(a) The Provider may at any time in its sole discretion assign these Terms and EULA by notice to the Customer.
(b) The Customer must not assign or deal with these Terms and EULA.

17.5. Costs

Each party must bear its own legal, accounting and other costs.

17.6. Non-exclusivity

The Customer acknowledges that it is not, nor will it be, the exclusive customer to the Provider of the kinds of services contemplated by these Terms and EULA and that the Provider may, at any time and from time to time, perform, provide or engage a third party to perform or provide part of its obligations under these Terms and EULA, without the consent of or notice to the Customer.

17.7. Counterparts

These Terms and EULA may be executed in any number of counterparts and all counterparts constitute an original document and when taken together will constitute one document.

17.8. Variation

An amendment or variation to these Terms and EULA is not effective unless it is in writing and signed by all the parties. For the avoidance of doubt and without limiting any other part of these Terms and EULA, the Fees may be amended by the Provider if a provision of these Terms and EULA allows for it.

17.9. Severability

Part or all of any provision of these Terms and EULA that is illegal or unenforceable will be severed from these Terms and EULA and will not affect the continued operation of the remaining provisions of these Terms and EULA.

17.10. Cumulative rights

The rights, powers and remedies provided in these Terms and EULA are in addition to those provided by law independently of these Terms and EULA and each right, power and remedy provided in these Terms and EULA (including any right of indemnity) is additional to and not exclusive of every other right, power or remedy provided in these Terms and EULA.

17.11. Survival

Termination or expiration in whole or in part of these Terms and EULA does not affect those provisions and those obligations of a party which by their very nature survive termination, including clauses 2, 6 (Intellectual Property), 7 (Confidentiality and privacy), 8 (Customer Data), 11 (Representations and Warranties), 12 (Liability), 14 (Disputes).

17.12. Governing law and Jurisdiction

(a) These Terms and EULA is governed by and is to be construed in accordance with the laws applicable in the State of Victoria, Australia.
(b) The parties irrevocably agree to submit all matters arising out of or in connection with these Terms and EULA to the courts of the State of Victoria, Australia.