Effective date: 28th March, 2019
1.1. By accessing, downloading, installing, or using any software including content, updates and new releases (collectively the “Products”, each a “Product”) provided by Nearsoft Inc, you, and, as the case may be, the entity or company that you represent (the “End user” or “You”), are agreeing to be bound by this End user License Agreement. The End user License Agreement, hereinafter referred as “Agreement”, gives you certain rights and responsibilities depending on the product license you selected, purchased or subscribed to, as more fully described herein.
1.2. If you do not agree to the terms of this Agreement, do not install or attempt to use any of the Products.
2. License grant and restrictions
2.1. The Products include Apps, add-ons, plugins and integrations for JiraTM, ConfluenceTM and Jira Service DeskTM. JiraTM, ConfluenceTM and Jira Service DeskTM are provided by Atlassian Pty Ltd. (“Atlassian”). The Products are offered and provided through an online marketplace (the “Atlassian Marketplace”), operated by Atlassian. In providing the Products, Nearsoft Inc may also provide products or access to services provided by third parties (“Third-party Products”). The End user’s procurement or use of any Third-Party Products is regulated under separate agreements between the End user and the relevant third party. Nearsoft Inc is not responsible for any Third-Party Products.
2.2. The Product is protected by copyright, trade secret, and other intellectual property laws. You acknowledge that any and all information, content, reports, data, databases, graphics, interfaces, web pages, software code, text, files, audio recordings, video recordings, product names, company names, trademarks, logos and tradenames contained on or provided in the Products, including the manner in which the Products are presented or appear and all information relating thereto, are the property of their respective owners as indicated or Nearsoft Inc, as the case may be. The copying, decompiling, redistribution, use, or publication by you of any part of the Products, except as contemplated by this Agreement, is strictly prohibited. You do not acquire ownership rights to any of the Products. The provision of any Products by Nearsoft Inc or any other person or entity does not constitute a waiver of any right in such Products.
2.3. If you violate any of these terms, this Agreement and your license to use the Product may be terminated by Nearsoft Inc in its sole discretion.
3.1. Mandatory activation: To use any of the Products, you must activate them. You can activate a Product by inputting a license key.
3.2. Evaluation license: By receiving an evaluation license key for a Product, Nearsoft Inc grants the End user a one-time, non-exclusive, non-sub-licensable, license to use the Product received at the time of download or installation, for a thirty (30) day period commencing on the day the evaluation license key is received by the End user. This is not a transfer of title.
3.3. Data centre license: By purchasing a data centre license key for a Product, Nearsoft Inc grants the End user a non-exclusive, non-sub-licensable, license to use the Product received at the time of download or installation, for the period of the subscription. This is not a transfer of title.
3.4. Server License: By purchasing a server license key for a Product, Nearsoft Inc grants the End user a non-exclusive, non-sub-licensable, license to use the Product received at the time of download or installation. This is not a transfer of title.
3.5. Under any of the Licenses, You may not and shall not, without Nearsoft Inc's express written authorization:
- transfer any of the Licenses;
- remove any copyright or other proprietary notations from the Products;
- distribute the Products for any purpose, including, without limitation, compile an internal database of, redistribute, or reproduce the Products in any form;
- permit any third party to benefit from the use or functionality of the Product via a rental, lease, timesharing, service bureau, hosting service, or other arrangement. Create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell, sublicence, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, make available to any person or otherwise use, either directly or indirectly, the Products in whole or in part, in any form or by any means whatsoever, be physical, electronic or otherwise;
- Upload, host, use or access the Software via a timesharing, service bureau, virtualization, application hosting or other remote access arrangement; or
- permit, allow or do anything that would infringe or otherwise prejudice the proprietary rights of Nearsoft Inc or its licensors or allow any third party to access the Products.
3.6. The End user may submit a request to transfer any of the Licenses by email to firstname.lastname@example.org. Nearsoft Inc is not obligated to grant any such request, and Nearsoft Inc may deny any such request for any reason.
3.7. Nearsoft Inc is not obligated to provide any authorization referred to in paragraph 3.6, Nearsoft Inc reserves the right to charge a fee for the grant of any such authorization, and Nearsoft Inc may cancel such authorization at its sole and unfettered discretion by providing notice to You of such cancellation.
3.8. The restrictions set out in this Agreement, including the restrictions listed at paragraph 3.5., shall not apply to the limited extent that the restrictions are prohibited by applicable law.
4. End user’s use of products
4.1. The End user shall be solely and exclusively liable for:
- all information and/ or data which the End User posts, uploads, transmits, processes, disseminates or otherwise shares with others by use of, or in connection with, the Products; informing authorized users of the contents of the Agreement (e.g. including provisions regarding processing of personal data);
- the results which the End User achieves by its use of the Products;
- any loss, damages, or costs incurred due to incompatibility between the Products or updates to them and any third-party Products the End user has installed or otherwise uses, and any other issues that may arise as a result of the interaction between the Products and third-party Products or similar products;
- any damage or liability to any party resulting from the End user’s use of the Products; &
- any unauthorized use of the Products.
4.2. The End user shall not:
- use the Products in any manner or for any purpose that violates this Agreement, any law or regulation, including but not limited to privacy rights and export laws, any right of Nearsoft Inc or any third party, including but not limited to intellectual property rights;
- sell, distribute, assign, license, transfer, monitor or copy all or any portion of the Products or any source or object code made available as part of the Products to any third party;
- reverse engineer, decompile, translate, alter, disassemble or create derivative works of the Products or parts of the Products or attempt to do any of the foregoing;
- interfere with or disrupt the Products; or
- rent, lease, loan or provide any other party access to the Products without Nearsoft Inc’s pre-approval in writing
5. Your privacy and personal information
- To give Nearsoft Inc permission to aggregate your non-personally identifiable data which you enter or upload with that of other users of the subscribed services.
- Nearsoft Inc may collect and use technical data and related information (“Collected data”) including, without limitation, technical information relating to your device, system, and the Products, that is gathered periodically to facilitate the provision of software updates, product support, marketing efforts, and other services and communications to you related to the Products, including providing you with information about services, features, surveys, newsletters, offers, promotions; providing other news or information about us and our select partners; and sending you technical notices, updates, security alerts, and support and administrative messages.
5.2. Nearsoft Inc may use the Collected data in a form that does not personally identify you except to the extent necessary to: provide you with support; communicate to improve products or services; or provide other services to you.
5.3. Nearsoft Inc agrees to handle the Collected data in accordance with the following:
- all applicable laws;
- privacy and security measures reasonably adequate to preserve the confidentiality and security of the Collected data; &
5.4. The End user may opt out of promotions by sending an email to email@example.com. Requests to opt out may take thirty (30) calendar days to process.
5.5. Some of the Collected data may include anonymous analytics information including, without limitation, use of the Products by the End user and use of system resources by the Products. The End user may disable the collection of anonymous analytics information through the Administration Module of the Products.
6.1. You are responsible for your content within the subscribed services. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored through your use of the Product. You grant Nearsoft Inc a worldwide, royalty-free, non-exclusive license to host and use any content provided through your use of the subscribed services. You agree not to use the Product for any illegal purpose or in violation of any applicable local, state, federal or international law. You are encouraged to archive your content regularly and frequently. You are responsible for any content that may be lost or unrecoverable through your use of the subscribed services. You agree that you will not use the Software to share, store, or in any way distribute financial data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data deleted, and they also may be reported to law enforcement officials in the appropriate jurisdictions. Nearsoft Inc is not responsible for the content or data you provide through your use of the Product. You agree not to use the Product to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
- Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
- Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);
- Except as otherwise permitted by Nearsoft Inc in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
- Virus, trojan horse, worm or other disruptive or harmful software or data; and
- Any information, software or content which yours is not legally and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
6.2. Nearsoft Inc may freely use feedback you provide. You agree that Nearsoft Inc may use your feedback, suggestions, or ideas in any way, including in future modifications of the Products, services, advertising or marketing materials. You grant Nearsoft Inc a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to use the feedback you provide to Nearsoft Inc in any way. Cairnstack Software LLC will not sell, publish or share your feedback in a way that could identify you without your explicit permission.
7. Identification of End user in marketing
7.1. The End user grants Nearsoft Inc the right to identify the End user as a customer of Nearsoft Inc in promotional materials.
7.2. The End user grants Nearsoft Inc the right to use the End user’s logos and other trademarks to identify the End User in promotional materials. Nearsoft Inc receives no other rights to Your logos or other trademarks under this Agreement. All goodwill arising from use of your trademarks belongs to you. For clarity, nothing in this Agreement assigns ownership of any of your intellectual property rights to Nearsoft Inc.
7.3. The End user may revoke or deny Nearsoft Inc the rights granted in 7.1. and 7.2. at any time by submitting a written request to be excluded from promotional materials via email to firstname.lastname@example.org. Requests may take thirty (30) calendar days to process.
8. Third-party software
8.1. The Products may contain software licensed to Nearsoft Inc from third parties, including software licensed under open source licenses (“Third-party software”). Additional obligations may apply to any use of Third-party software outside of the Licenses granted under this Agreement. In such circumstances you must consult the relevant third party to acquire any necessary licenses and consent in relation to your use of the Third-party software.
8.2. The Products may use services provide by third parties, for example APIs and web services. Nearsoft Inc 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 Products to function properly. Nearsoft Inc disclaims any liability for the consequences of such actions by such third parties.
9. Links to other web services
The Products may contain links to other websites and services. Nearsoft Inc is not responsible for the contents, accuracy, or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Nearsoft Inc. Inclusion of any linked website does not imply approval or endorsement of the linked website by Nearsoft Inc. If you decide to access these third-party sites, you do so at your own risk.
10.1. For any Product which the End user has purchased maintenance for through the Atlassian Marketplace, Nearsoft Inc will provide online technical support to the End user during the purchased maintenance period.
10.2. The provision of online technical support is further governed by Nearsoft Inc’s Service Level Agreement (the “SLA”). The SLA can be found at https://planningwith.cards/privacypolicy.
10.3. End users who are entitled to online technical support may request support through Nearsoft Inc’s support portal at https://planningpoker.atlassian.net/servicedesk/customer/portals
11. Fees for Products
For Products licensed on a payment or subscription basis, the following terms apply, unless Nearsoft Inc notifies you otherwise in writing. This Agreement also incorporates by reference payment terms provided to you for the Product:
11.1. Nearsoft Inc may charge a fee for use of all or some features of the Products. If at any time Nearsoft Inc does not charge a fee for any feature of any Product, Nearsoft Inc will in no way be barred from charging a fee for that feature in the future.
11.2. If Nearsoft Inc does charge a fee, the fee will be decided in the sole discretion of Nearsoft Inc. Nearsoft Inc will provide notice to you if Nearsoft Inc starts charging a fee for a feature or changes the amount of a fee for a feature.
12. Refusal of Products
12.1. Nearsoft Inc reserves the right, at its sole discretion, reserves the right to discontinue all support for the Products or subscribed services, and/or for any features, online or other services or content accessible through the respective subscribed services or Products in accordance with its current discontinuation policy.
12.2. Nearsoft Inc can limit the provision of any product or service, including access to or use of any of the Products, to any person or entity, for any reason.
12.3. Nearsoft Inc reserves the right to block any functionality of any Product for which an End user does not have a valid evaluation license key, Data centre license key, or Server license key.
13. Updates to the products
Nearsoft Inc reserves the right, in its sole discretion, to make any changes to the Products, including adding or removing any features of the Products. Nearsoft Inc has no obligation to update the Products, and the Products may be changed without notice to you.
14. Evaluation licenses
14.1. Any Product licensed under an Evaluation license may only be used for internal evaluation purposes.
14.2. Each Evaluation license expires thirty (30) days after the End user receives a corresponding evaluation license key. Any Product or any feature of any Product activated with an evaluation license key may cease to operate upon expiration of the corresponding Evaluation license.
14.3. The End user may only obtain one Evaluation license per Product, unless otherwise authorized by Nearsoft Inc. The End user may request an additional Evaluation license or an extension of an Evaluation license through the Atlassian Marketplace or by contacting Nearsoft Inc at email@example.com. Nearsoft Inc is not obligated to grant any such request, and Nearsoft Inc may deny any such request for any reason.
You agree to indemnify, defend and hold Nearsoft Inc and its partners, lawyers, staff, affiliates, successors and assigns (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense, including reasonable legal fees, related to your violation of this Agreement or use of the Products.
16. Disclaimer and limitation of liability
16.1. YOUR USE OF THE SUBSCRIBED SERVICES AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEARSOFT INC, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, “SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SUBSCRIBED SERVICES IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SUBSCRIBED SERVICES. THE INFORMATION, FORMS, AGREEMENTS, LICENCES, MEDIA, CONTENT, DIGITAL DOWNLOADS, TANGIBLE PRODUCTS, GOODS AND SERVICES (THE “ITEMS”) PROVIDED FROM OR THROUGH THE PRODUCTS ARE PROVIDED “AS IS”, “AS AVAILABLE” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE ITEMS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NEARSOFT INC AND ITS AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY OF THE ITEMS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, NEARSOFT INC AND THE AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NEARSOFT INC. THE PRODUCTS AND THE ITEMS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
16.2. NEARSOFT INS AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SUBSCRIBED SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE EU GENERAL DATA PROTECTION REGULATIONS (“GDPR”) ON THE PROTECTION OF NATURAL PERSONS REGARDING THE PROCESSING OF PERSONAL DATA AND FREE MOVEMENT OF SUCH DATA, ANY OTHER APPLICABLE PERSONAL DATA PROTECTION LEGISLATION, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
16.3. The Products may not be appropriate under the circumstances for any particular matter. No representations, warranties or guarantees whatsoever are made as to the effectiveness, completeness, adequacy, reliability, suitability, accuracy, correctness, or applicability of any of the Products to a particular situation.
16.4. All responsibility or liability for any damages caused by the Products, including, without limitation, damages caused by computer viruses or other malicious code contained within the Products is disclaimed.
17. Ability to accept the Agreement
You affirm that You are 18 or more years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. The Products are not intended for individuals under 18. If you are under 18 years of age, then please do not use the Products.
18. Ability to accept the Agreement
18.1. This Agreement is effective until terminated by Nearsoft Inc, with or without cause, in Nearsoft Inc's sole and unfettered discretion. Nearsoft Inc may terminate this Agreement without notice to you if you fail to comply with any of its terms. Any such termination by Nearsoft Inc shall be in addition to and without prejudice to such rights and remedies as may be available to Nearsoft Inc, including injunctive and other equitable remedies.
18.2. The disclaimers, limitations on liability, ownership, termination, interpretation, your licence(s) to and authorizations of Nearsoft Inc, your warranty and the indemnity provisions of this Agreement shall survive the termination or expiry of this Agreement.
18.3. This Agreement will automatically terminate if you violate or assist in the violation of any of the restrictions of paragraphs 3.6, 4.1 and 4.2.
18.4. On the termination of this Agreement, you must remove all Products from your systems and destroy any copies of the Products in your possession whether in electronic or printed format.
18.5. Any termination of this Agreement shall not affect Nearsoft Inc’s rights to any payments due to it.
19.1. This Agreement shall be treated as though it were executed and performed in the province of San Jose CA, USA, and shall be governed by and construed in accordance with the laws of San Jose CA (without regard to conflict of law principles).
19.2. Any of Your causes of action with respect to the Products must be instituted within six (6) months after the cause of action arose or be forever waived and barred.
19.3. The language in this Agreement shall be interpreted as to its fair meaning and not construed strictly for or against either party. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
19.4. All legal proceedings arising in connection with this Agreement shall be brought solely and exclusively in California, San Jose in the Courts of San Jose. You expressly submit to the exclusive jurisdiction of said courts and consent to extra-territorial service of process.
19.5. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
19.6. Failure of Nearsoft Inc to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
19.7. You agree to review this Agreement prior to using the Products. This Agreement may be amended by Nearsoft Inc from time to time without specific advance notice to You.
19.8. This Agreement, as modified from time to time as described above, and including the policies incorporated by reference, constitute the entire and only agreements between You and Nearsoft Inc and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Products and the subject-matter of this Agreement.
19.9. To the extent that anything in or associated with the Products is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.
19.10. You acknowledge and agree that any information you send or receive during your use of the Product may not be secure and may be intercepted or later acquired by unauthorised parties. You acknowledge and agree that your use of the site and any software or firmware downloaded therefrom is at your own risk.