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Software licence agreement

PARTIES

(1) ELEMENTS APPS, Société par Actions Simplifiée with capital of 803 625,00 euros, registered in the Trade Registry of Toulouse as number 834 024 390, with its head office at

ELEMENTS APPS,
2 Esplanade Compans Caffarelli – Bât E,
31000 Toulouse, France

represented by Alexandre Alquier in his capacity as Chief executive officer, duly authorised for the purpose thereof (hereafter referred to as the “Licensor”); and

(2) The “Licensee” which is the entity entering into the present software licence agreement (hereafter referred to as the “Licence Agreement”) with the Licensor.

The Licensor and the Licensee shall be referred to herein either individually as a “Party” and together as the “Parties”.

WHEREAS

IT IS HEREBY AGREED

1.    Definitions

1.1. In this Licence Agreement, unless the context otherwise requires:

Atlassian means the company Atlassian Corporation Plc;

Atlassian Marketplace means the platform managed by Atlassian where the Licensee purchases the Software and related Support and Maintenance Services;

Authorized User means Licensee’s users that may access and use the Software pursuant to Clause 7 “Scope of Use of the Software” to this Licence Agreement and for whom the Licensee has paid the required fees; Authorized users may include Licensee’s affiliates and third-party using the Software on behalf of the Licensee or on behalf of the Licensee’s affiliates.

Charges means the fees payable by the Licensee to Atlassian pursuant to the Atlassian Marketplace Terms of Use;

Intellectual Property Rights means any intellectual property rights according to the French intellectual property Code, particularly:

Licence means the Software licence granted by the Licensor under the conditions described in Clause 7 “Scope of Use of the Software”;

Licence Term means the term of the Licence, whether it is:

Notification Email Address means the email address the Licensee used to subscribe to the Software. It is the Licensee’s responsibility to keep the email address valid and current so that the Licensor is able to send licence keys, notices, statements, and other information to the Licensee;

Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier;

Scope of Use means the authorised use of the Software as described in Clause 7 “Scope of Use of the Software” of the Licence Agreement;

Software means any and all Licensor’s add-on (app) and/or extension proprietary software offerings developed by the Licensor and provided to the Licensee. Third party apps that are not from the Licensor are not Software and remain subject to their own applicable vendor terms;

Support and Maintenance Services means any corrective, update or upgrade services of the Software provided by the Licensor under the conditions described in the Licensor’s  Support Portal Terms and Conditions;

Termination Date means the date of termination of this Licence Agreement, howsoever arising;

Virus means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part of otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Year: the period from the Effective Date to the first anniversary date of the Effective Date.

2. Scope of the Agreement

2.1. This Licence Agreement governs the Licensee’s initial purchase of the Software and future purchases by the Licensee.

2.2. This Licence Agreement does not apply to cloud-based solutions which are governed by a separate agreement with the Licensor (i.e. Cloud Terms of Use).

3. Headings

3.1. Clause and paragraph headings shall not affect the interpretation of this Licence Agreement.

3.2. If there is an inconsistency between any of the provisions in the main body of this Licence Agreement and the headings, the provisions in the main body of the Licence Agreement shall prevail.

4. Licence Term and consent

4.1. The Licence Agreement is effective as of the date the Licensee first click “I agree” (or similar button) or use or access the Software (hereafter referred to as the “Effective Date”). The Licence Agreement does not have to be signed in order to be binding. By clicking “I agree” (or similar button) at the time (a) the Licensee first access to or use of the Software, or (b) the Licensee places an order of the Software on the Atlassian Marketplace, the Licensee accepts to be bound by this Licence Agreement.

4.2. This Licence shall commence on the Effective Date and shall continue in full force and effect during the Licence Term.

4.3. The Licensee is engaged since the employee or any representative of the Licensee accepts the present Licence Agreement and then agreed that: (i) he has full legal authority to bind the Licensee or such entity to this Licence Agreement; (ii) he has read and understand this Licence Agreement; and (iii) he agrees to this Licence Agreement on behalf of the Party that he represents. If he doesn’t have the legal authority to bind the Licensee or the applicable entity, it is forbidden to click “I agree” (or similar button or checkbox) that is presented.

4.4. The Licensee agrees that if an employee or any representative of the Licensee purchases the Software using an email address from the Licensee or another entity, then (a) he will be deemed to represent such Party, (b) his click to accept will bind the Licensee or that entity to this Licence Agreement.

5. Modification of the Licence Agreement

5.1. The Licensor may modify the terms and conditions of this Licence Agreement from time to time, with notice through the Licensee’s Notification Email Address and through the Licensor’s website.

5.2. In the event of a modification of the Licence Agreement, the Licensee shall accept the modified Licence Agreement to continue using the Software. If the Licensee objects to the modifications, the Licensee exclusive remedy is to cease using the Software.

To take into account Atlassian Marketplace technical constraints, the annual renewal of the licence constitutes the most natural way for the moment for the Licensee to accept or refuse the modified licence.

6. Delivery

6.1. After the reception of the applicable Charges by Atlassian pursuant to Article 2 “Your Orders” of the Atlassian Marketplace Terms of Use, the Licensor will deliver the Software to the Licensee by either making the Software available to the Licensee or providing the applicable licence keys to the Licensee’s Notification Email Address.

7. Scope of Use of the Software

7.1. As of the Effective Date, the Licensor grants the Licensee a non-exclusive, non-assignable, non-transferable, non-sub-licensable Licence to install and use the Software for Licensee internal business purposes or personal use in relation to the Licence Agreement for the Licence Term and for up to the number of Authorized Users as purchased on the Atlassian Marketplace.

7.2. The Licensee may not, without the express written authorisation of the Licensor, copy, reproduce, change, adapt, disassemble, translate or reverse-engineer the Software, other than as required to ensure the interoperability of the Software with other software developed independently by the Licensee.

7.3. No ownership right is conveyed to the Licensee, irrespective of the use of terms such as “purchase” or “sale”. The Licensor has and retains all right, title and interest, including all Intellectual Property Rights.

7.4. , The right to use the Software provided under this Licence Agreement is only granted to the Licensee and the Licensee’s Authorized Users and under its control.

7.5. For each Software that the Licensee purchases, the Licensee may install one production instance of the Software on systems owned or operated by itself or one of its Users.

7.6. The Licensee is responsible for compliance of the Licensee and all its Users with this Licence Agreement. All use of Software must be solely for the benefit of the Licensee and must be within the Scope of Use.

7.7. During the Licence Term, the Licensee may increase the Scope of Use (e.g., adding Users) by placing a new order on the Atlassian Marketplace or, if available, directly through the applicable Software. Any increases to the Scope of Use will be subject to additional Charges, as set forth in the Atlassian Marketplace Terms of Use.

8. Licensor’s Obligations

8.1. During the Licence Term, the Licensor shall provide the Software to the Licensee in a competent and professional manner with reasonable skill and ability conforming to generally accepted software standards.

9. Licensee’s Obligations

9.1. The Licensee and its Authorized Users shall use the Software in accordance with the Licence and comply with the terms of the Licence Agreement and any other referenced policies and terms of this Licence Agreement.

9.2. The Licensee shall comply with all applicable laws and regulations with respect to its activities under this Licence Agreement.

9.3. The Licensee shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Licensor promptly of any such unauthorised access or use.

9.4. The Licensee acknowledges and agrees that the Licensor has no support, warranty, indemnification or other obligation or liability with respect to the modifications the Licensee could operate on the licensed Software or their combination, interaction or use with the Software. Any modification of the Software by the Licensee constitutes an infringement of the Licence Agreement and the Licensee does so at its own risk and peril.

9.5. The Licensee will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against the Licensor arising from or related to Licensee’s breach of the Licence Agreement, especially any claims or disputes brought (a) by a third party related to the use of the materials of the Licensee in the context of the Licence Agreement; or (b) by a third party relating to any content or data used by the Licensee in connection with the Software and not provided by the Licensor.

10. Support and Maintenance Services

10.1. During the Licence Term, the Licensor will provide the Licensee with Support and Maintenance Services for the Software pursuant to the conditions described in the Licensor’s Support Portal Terms and Conditions .

11. Fees and payment

11.1. The Licensee agrees that all payments are submitted to the provisions of Article 2 “Your orders” of the Atlassian Marketplace Terms of Use.

11.2. The Licensee agrees that in application of Article D. 441-5 of the French Commercial Code, any late payment of the Charges shall result in the payment of a forty-euro indemnity as compensation for recovery costs.

12. Intellectual Property Rights

12.1. The Parties retain the exclusivity of their Intellectual Property Rights prior to the conclusion of the Licence Agreement.

12.2. The Licensee and its Authorized Users shall not:

12.3. The Licensor will retain all right, title and interest in and to any Software, materials, adds-on, deliverables, derivative works or developments that the Licensor would provide the Licensee in connection with any additional services.

12.4. The Software may include code and libraries licensed to the Licensor by third parties, including open source software. Their use is submitted to their own software licence and the Licensee shall comply with the relevant open source licences. The Licensee shall read and respect the provisions of Third Party Code in Atlassian Products regarding the use of third-party code.

13. Confidentiality

13.1. Each Party (hereafter referred to as the “Receiving Party”) acknowledges that they may access to information, that have been disclosed to the Receiving Party or its affiliates by the other Party (hereafter referred to as the “Disclosing Party”) or its agents or affiliates, which are of a confidential nature, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, Licensees, products, affairs and finances of either Party for the time being which is confidential to that Party and trade secrets including, without limitation, technical data and know-how relating to the business of that Party or any of its Licensors, Licensees, agents, distributors, shareholders, management or business contacts (hereafter referred to as “Confidential Information”).

13.2. The Receiving Party shall keep in strict confidence all Confidential Information, and any other Confidential Information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its or its affiliates’ employees, agents or sub-contractors as need to know it for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Disclosing Party.

13.3. All materials, equipment and tools, drawings, specifications and data supplied by the Disclosing Party to the Receiving Party shall at all times be and remain the exclusive property of the Disclosing Party, but shall be held by the Receiving Party in safe custody at its own risk and maintained and kept in good condition by the Receiving Party until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorisation.

13.4. The obligations in this clause shall not apply in relation to:

13.5. To the extent that any Confidential Information of the other Party is stored within a computer system or is stored in machine-readable form, the Receiving Party shall ensure that such Confidential Information is secured so that access may not be gained, and copies may not be made other than in accordance with this Licence Agreement.

13.6. Subject always to the Receiving Party’s right to retain (for such purposes only) one copy of any Confidential Information of the other Party which the Receiving Party requires to retain to satisfy any applicable audit or regulatory requirements, the Receiving Party shall as soon as reasonably practicable on the written request of the Disclosing Party return all documents and materials containing the Confidential Information or if so required shall at the request of the Disclosing Party destroy all documents and materials containing the Confidential Information (including any copies, analysis, memoranda or other notes made by the Receiving Party) in its possession or under its custody or control and shall in addition (so far as reasonably practicable) remove any such Confidential Information stored within any computer or word processing system whether or not in machine-readable form and certify in writing to the other that all such documents and materials have been destroyed.

13.7. The Parties shall use reasonable endeavours to ensure that their employees, agents and sub-contractors comply with this clause.

13.8. From time to time, the Licensee may choose to send feedback to the Licensor while suggested. No feedback will be considered as confidential information and the Licensor reserves the right to use, develop, evaluate, or market products or services on the basis of Licensee’s feedback or with incorporation of Licensee’s feedback or otherwise. Without prejudice to Clause 12 “Intellectual Property Rights”, the Licensor may in connection with any of its products or services freely use, copy, disclose, licence, distribute and exploit any feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise.

14. Personal Data

14.1. The Licensor may collect Personal Data from the Licensee in connection with this Licence Agreement.

14.2. The Licensee hereby acknowledges and accepts the rights and obligations of the Licensor’s privacy policy that he has read and understood and accessible at the following link: Terms & Privacy – Elements .

15. Warranties and Disclaimer

15.1. IMPORTANT: It is agreed between the Parties that the Licensee is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Software. Without prejudice to the Licensor’s obligations provided in Clause 8 “Licensor’s Obligations” of this Licence Agreement, the Licensee is fully responsible for the choice of the Software. In case of doubt, the Licensee is invited to call the support before any purchase at  contact@elements-apps.com .

15.2. Each Party represents and warrants that it has the legal power and authority to enter into this Licence Agreement. If the Licensee is an entity, he warrants that this Licence Agreement and each Purchase Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Licence Agreement.

15.3. The Licensor warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to the Licensee, will be free of any viruses, malware, or other harmful code.

15.4. The Licensor warrants that the Software will not violate the Intellectual Property Rights of any third parties and, therefore, guarantees the Licensee against any legal action or claims brought by third parties (hereafter referred to as “Third Party Claims”) alleging that the use of the Software by the Licensee infringes or violates the rights of the third party under applicable laws. Under this warranty, the Licensor shall bear reasonable lawyers’ fees and other reasonable legal fees which the Licensee may be required to incur or suffer as a result of such legal action or claim, as well as all the direct damages the Licensee may be sentenced to pay by a binding court decision.

15.5. On becoming aware of a Third Party Claim , the Licensee shall (i) promptly notify the Licensor of such Third Party Claim (ii) provide the Licensor with the sole control over the defence and/or settlement of such Third Party Claim (with the Licensee retaining the right to participate in such Third Party Claim (but not control) with its own legal counsel, at its own expense), and (iii) give reasonable cooperation and assistance to the Licensor, at the Licensor’s cost, with regard to such Third Party Claim.

15.6. This warranty will not be applicable if the Third Party Claim arises from (i) an allegation that does not state with specificity that the Software is the basis of the Third Party Claim, (ii) the use or combination of the Software with any other material not developed by the Licensor, (iii) the use of the Software not in accordance with this Licence Agreement or the Documentation, (iv) a modification of the Software by any other Party than the Licensor.

15.7. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, THE LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. THE LICENSOR WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE LICENSOR. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THE LICENSOR 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 SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

16. Limitation of Liability

16.1. The Licensor shall be liable to the Licensee for the foreseeable and direct damages in connection with this Licence Agreement, to the exclusion of indirect damages such as loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of Software, data or information, failure of security mechanism, interruption of business, costs of delay or for any indirect or consequential damage of any kind.

16.2. Except as expressly and specifically provided in this Licence Agreement, the Licensee assumes sole responsibility for results obtained from the use of the Software by the Licensee, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Licensor by the Licensee; or in the case the Licensee does not implement the required actions.

16.3. In any event and without prejudice to the Licensee’s obligation to pay the Charges, the total liability of the Licensor to the Licensee arising under or in connection with this Licence Agreement shall not in respect of any Year, exceed the amount actually paid or payable by the Licensee under this Licence Agreement in the six (6) months immediately preceding the claim.

16.4. Nothing in this Licence Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, gross negligence or wilful or deliberate misconduct, or any other liability which cannot be limited or excluded by applicable law.

16.5. Without prejudice to the Licensee’s obligation to pay the Fees (including any expenses), the Licensee’s total liability to the Licensor arising under or in connection with this Licence Agreement shall not, in respect of any Year, exceed the amount actually paid or payable by the Licensee under this Licence Agreement in the six (6) months immediately preceding the claim.

16.6. The Licensor will have no obligations or responsibility under this Licence Agreement for issues caused by the use of any third-party hardware or Software not provided by itself.

16.7. If the Licensee enables or uses third-party products or services with the Software, the Licensee acknowledges that the third-party providers may access or use the data of the Licensee as required for the interoperation of their products and services with the Software. The Licensee is solely responsible for the decision to permit any third-party provider or third-party product or service to use the data of the Licensee. It is Licensee’s responsibility to carefully review the Licence Agreement between itself and the third-party provider, as provided by the applicable third-party provider. THE LICENSOR DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

17. Sub-licensing

17.1. The Licensee acknowledges and agrees that the Licensor may engage subcontractors without any prior written consent for the execution of the Licence Agreement.

18. Termination

18.1. This Licence Agreement is effective as of the Effective Date and expire on the date of expiration or termination of the Licence Term.

18.2. The Licensor may terminate the Licence Agreement if the Licensee uses the Software not in accordance with this Licence Agreement.

18.3. Upon any expiration or termination of the Licence Agreement, the Licence terminates and the Licensee is not authorised to use the Software. Except where an exclusive remedy may be specified in the Licence Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under the Licence Agreement, by law, or otherwise.

18.4. On termination or expiry of the Licence Agreement, the Licensor shall delete any information relating to the business of the Licensee stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its possession or under its control outside the premises of the Licensee, except the information the Licensor shall keep complying with laws, regulations or contractual obligations.

18.5. The following sections will survive any termination or expiration of the Licence Agreement: Clause 11 “Fees and payment”, Clause 12 “Intellectual Property Rights”, Clause 13 “Confidentiality, Clause 15 “Warranties and Disclaimer”, Clause 16 “Limitation of liability”, Clause 20 “Governing Law – Dispute Resolution”, Clause 21 “Miscellaneous and General”.

18.6. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Termination Date or expiry, including the right to claim damages in respect of any breach of this Licence Agreement which existed at or before the Termination Date or expiry, shall not be affected.

19. Publicity Rights

19.1. The Licensor may identify the Licensee as a customer in its promotional materials, unless the Licensee asks for stopping doing so at the following address: contact@elements-apps.com.

20. Governing Law – Dispute Resolution

20.1. The Licence Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and interpreted under French law.

20.2. If either Party (hereafter referred to as the “First Party”) believes in good faith that the other Party (hereafter referred to as the ”Other Party”) has breached any term of this Licence Agreement, then the First Party shall notify the Other Party, in writing setting forth in reasonable detail the nature of the alleged breach (hereafter referred to as the “Notice of Breach”). If the Other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach. If, however, the Other Party disputes the validity of the Notice of Breach, then the Parties shall comply with the following provisions in order to expedite the review, verification, cure and remedy of any such breach.

20.3. Any dispute to be resolved pursuant to this Licence Agreement shall first be submitted for resolution to the authorised contacts of each Party. If such authorised contacts are unable to resolve the dispute within fourteen (14) days after the date on which the Notice of Breach is received by the Other Party (or such longer time as it mutually agreed in writing), then each Party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute as provided in Clause 20.4 hereunder.

20.4. Each Party irrevocably agrees that the courts of Paris, France, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Licence Agreement or its subject matter or formation (including non-contractual disputes or claims), not already settled amicably by the Parties under Clauses 20.2 or 20.3.

21. Miscellaneous and General

21.1. Parties must for the duration of this Licence Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Licence Agreement.

21.2. Nothing in this Licence Agreement is intended to, or shall operate to, create a partnership between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

21.3. Each Party shall not be liable for any delay or breach in any of its obligations pursuant to this Licence Agreement which originates from a force majeure event within the meaning of Article 1218 of the French Civil Code.

21.4. If any provision of this Licence Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any such invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were modified in any way, the Parties shall negotiate in good faith to modify such provision so that, as modified, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

21.5. No failure or delay by a Party to exercise any right or remedy provided under this Licence Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.6. The rights and remedies provided under this Licence Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21.7. Neither Party may assign (except by way of security), transfer, sub-contract or otherwise dispose of this Licence Agreement and any of its rights or obligations thereunder, without the prior written consent of the other Party.

21.8. The Licence Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement between them relating thereto. In entering into this Licence Agreement neither Party has relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether made innocently or negligently and whether or not made in writing) of any person (whether or not party to this Licence Agreement) which is not expressly set out in this Licence Agreement.

Cloud terms of use

PARTIES

(1) ELEMENTS APPS, Société par Actions Simplifiée with capital of 1 623 200,00 euros, registered in the Trade Registry of Toulouse as number 834 024 390, with its head office at

ELEMENTS APPS,
2 Esplanade Compans Caffarelli – Bât E,
31000 Toulouse, France

represented by Alexandre Alquier in his capacity as Chief executive officer, duly authorised for the purpose thereof (hereafter referred to as the “Licensor”); and

(2) The “Licensee” which is the entity entering into the present cloud terms of use (hereafter referred to as the “CTU”) with the Licensor.

The Licensor and the Licensee shall be referred to herein either individually as a “Party” and together as the “Parties”.

WHEREAS

IT IS HEREBY AGREED

1.    Definitions

1.1.    In these CTU, unless the context otherwise requires:

Atlassian means the company Atlassian Corporation Plc;

Atlassian Marketplace means the platform managed by Atlassian where the Licensee purchases the Cloud Products and related Support and Maintenance Services;

Charges means the fees payable by the Licensee to Atlassian pursuant to the Atlassian Marketplace Terms of Use ;

Data means all Licensee’s data collected, analysed and processed using the Cloud Products, including Personal Data;

Extended Term means the term as defined in Clause 4 “Subscription Term and consent”;

Initial Term means the term as defined in Clause 4 “Subscription Term and consent”;

Intellectual Property Rights means any intellectual property rights according to the French intellectual property Code, particularly:

Notification Email Address means the email address the Licensee used to subscribe to a Cloud Product. It is the Licensee’s responsibility to keep the email address valid and current so that the Licensor is able to send notices, statements, and other information to the Licensee.

Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier;

Scope of Use means the authorised use of the Cloud Product as described in Clause 6 “Use of the Cloud Product” to these CTU;

Sensitive Data means any Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation;

Subscription Term means the Initial Term and all Extended Terms;

Support and Maintenance Services means any corrective, update or upgrade services of the Cloud Product provided by the Licensor under the conditions described in the Licensor’s Support Portal Terms and Conditions ;

Termination Date means the date of termination of these CTU, howsoever arising;

Virus means anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer Cloud Product, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part of otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

Year: the period from the Effective Date to the first anniversary date of the Effective Date.

2.    Scope of the CTU

2.1. These CTU govern the Licensee’s initial subscription for the Licensor’s Cloud Products and future purchases by the Licensee.

2.2. These CTU do not apply to the Licensor’s download solutions which are governed by a separate agreement with the Licensor (i.e. Software Licence Agreement).

3.    Headings

3.1. Clause and paragraph headings shall not affect the interpretation of these CTU.

3.2. If there is an inconsistency between any of the provisions in the main body of these CTU and the headings, the provisions in the main body of these CTU shall prevail.

4.    Subscription Term and consent

4.1. These CTU are effective as of the date the Licensee first click “I agree” (or similar button) or use or access a Cloud Product (hereafter referred to as the “Effective Date”). These CTU do not have to be signed in order to be binding. By clicking “I agree” (or similar button) at the time the Licensee purchases the Cloud Product on the Atlassian Marketplace, the Licensee accepts to be bound by these CTU.

4.2. The Licensee is engaged since the employee or any representative of the Licensee accepts the present CTU and then agrees that: (i) he has full legal authority to bind the Licensee or such entity to these CTU; (ii) he has read and understand these CTU; and (iii) he agrees to these CTU on behalf of the Party that he represents. If he doesn’t have the legal authority to bind the Licensee or the applicable entity, it is forbidden to click “I agree” (or similar button) that is presented.

4.3. The Licensee agrees that if an employee or any representative of the Licensee signs up for a Cloud Product using an email address from the Licensee or another entity, then (a) he will be deemed to represent such Party, (b) his click to accept will bind the Licensee or that entity to these CTU.

4.4. These CTU shall commence on the Effective Date and shall continue in full force and effect for a period of twelve (12) months (hereafter referred to as the “Initial Term”).

4.5. Unless terminated earlier in accordance with Clause 17 “Termination”, these CTU shall automatically extend for a further period of twelve (12) months (hereafter referred to as the “Extended Term”) at the end of the Initial Term and at the end of the Extended Term, by tacit renewal.

5.    Modification of the CTU

5.1. The Licensor may modify the terms and conditions of these CTU from time to time, with notice through the Licensee’s Notification Email Address and through the Licensor’s website.

5.2. In the event of a modification of the CTU, the Licensee shall accept the modified CTU to continue using the Cloud Product. If the Licensee objects to the modifications, the Licensee exclusive remedy is to cease using the Cloud Product.

To take into account Atlassian Marketplace technical constraints, the annual renewal of the licence constitutes the most natural way for the moment for the Licensee to accept or refuse the modified licence.

6.    Use of the Cloud Product

6.1. As of the Effective Date, the Licensor grants to the Licensee a personal, non-exclusive, non-transferable, non-assignable and non-sub-licensable right to use the Cloud Product during the Subscription Term for its internal business purposes or personal use in relation to these CTU. This includes the right, as part of the authorised use of the Cloud Products, to download and use the Licensee cloud products associated with the Cloud Products, if applicable.

6.2. No ownership right is conveyed to the Licensee, irrespective of the use of terms such as “purchase” or “sale”. The Licensor has and retains all right, title and interest, including all Intellectual Property Rights.

7.    Licensor’s Obligations

7.1. During the Subscription Term, the Licensor shall provide the Cloud Product to the Licensee in a competent and professional manner, with reasonable skill and ability conforming to generally accepted software standards.

8.    Licensee’s Obligations

8.1. The Licensee shall comply with the terms of these CTU and any other referenced policies and terms of these CTU.

8.2. The Licensee shall comply with all applicable laws and regulations with respect to its activities under these CTU.

8.3. The Licensee shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Cloud Product and notify the Licensor promptly of any such unauthorised access or use.

8.4. The Licensee acknowledges and agrees that the Licensor has no support, warranty, indemnification or other obligation or liability with respect to the modifications the Licensee could operate on the Cloud Product or the combination, interaction or use with the Cloud Product. Any modification of the Cloud Product by the Licensee constitutes an infringement of the CTU and the Licensee does so at its own risk and peril.

8.5. The Licensee will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against the Licensor arising from or related to Licensee’s breach of the CTU especially any claims or disputes brought (a) by a third party related to the use of the materials of the Licensee in the context of these CTU; or (b) by a third party relating to any content or data used by the Licensee in connection with the Cloud Product and not provided by the Licensor.

9.    Support and Maintenance Services

9.1. During the Subscription Term, the Licensor will provide the Licensee with Support and Maintenance Services for the Cloud Product pursuant to the conditions described in the Licensor’s Support Portal Terms and Conditions .

10.     Fees and payment

10.1. The Licensee agrees that all payments are submitted to the provisions of Article 2 “Your orders” of the Atlassian Marketplace Terms of Use.

10.2. The Licensee agrees that in application of Article D. 441-5 of the French Commercial Code, any late payment of the Charges shall result in the payment of a forty-euro indemnity as compensation for recovery costs.

11. Intellectual Property Rights

11.1. The Parties retain the exclusivity of their Intellectual Property Rights prior to the conclusion of these CTU.

11.2. The Licensee shall not:

11.3. The Licensor will retain all right, title and interest in and to any Cloud Products, materials, adds-on, deliverables, derivative works or developments that the Licensor would provide the Licensee in connection with any additional services.

11.4. The Cloud Product may include code and libraries licensed to the Licensor by third parties, including open source Cloud Product. In this case, the Licensee shall comply with the relevant open source licences. The Licensee shall read and respect the provisions of Third Party Code in Atlassian Products regarding the use of third-party code.

12. Confidentiality

12.1. Each Party (hereafter referred to as the “Receiving Party”) acknowledges that they may access to information, that have been disclosed to the Receiving Party or its affiliates by the other Party (hereafter referred to as the “Disclosing Party”) or its agents or affiliates, which are of a confidential nature, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, Licensees, products, affairs and finances of either Party for the time being which is confidential to that Party and trade secrets including, without limitation, technical data and know-how relating to the business of that Party or any of its Licensors, Licensees, agents, distributors, shareholders, management or business contacts (hereafter referred to as “Confidential Information”).

12.2. The Receiving Party shall keep in strict confidence all Confidential Information, and any other Confidential Information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its or its affiliates’ employees, agents or sub-contractors as need to know it for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Disclosing Party.

12.3. All materials, equipment and tools, drawings, specifications and data supplied by the Disclosing Party to the Receiving Party shall at all times be and remain the exclusive property of the Disclosing Party, but shall be held by the Receiving Party in safe custody at its own risk and maintained and kept in good condition by the Receiving Party until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorisation.

12.4. The obligations in this clause shall not apply in relation to:

12.5. To the extent that any Confidential Information of the Disclosing Party is stored within a computer system or is stored in machine-readable form, the Receiving Party shall ensure that such Confidential Information is secured so that access may not be gained and copies may not be made other than in accordance with these CTU.

12.6. Subject always to the Receiving Party’s right to retain (for such purposes only) one copy of any Confidential Information of the other Party which the Receiving Party requires to retain to satisfy any applicable audit or regulatory requirements, the Receiving Party shall as soon as reasonably practicable on the written request of the Disclosing Party return all documents and materials containing the Confidential Information or if so required shall at the request of the Disclosing Party destroy all documents and materials containing the Confidential Information (including any copies, analysis, memoranda or other notes made by the Receiving Party) in its possession or under its custody or control and shall in addition (so far as reasonably practicable) remove any such Confidential Information stored within any computer or word processing system whether or not in machine-readable form and certify in writing to the other that all such documents and materials have been destroyed.

12.7. The Parties shall use reasonable endeavours to ensure that their employees, agents and sub-contractors comply with this clause.

12.8. From time to time, the Licensee may choose to send feedback to the Licensor while suggested. No feedback will be considered as confidential information and the Licensor reserves the right to use, develop, evaluate, or market products or services on the basis of Licensee’s feedback or with incorporation of Licensee’s feedback or otherwise. Without prejudice to Clause 11 “Intellectual Property Rights”, the Licensor 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.

13. Personal Data

13.1. The Licensor may collect Personal Data from the Licensee in connection with the Licensee’s use of the Cloud Product and otherwise in connection with these CTU.

13.2. The Licensee hereby acknowledges and accepts the rights and obligations of the Licensor’s privacy policy that he has read and understood and accessible at the following link: https://elements-apps.com/terms#Privacy-policy.

14. Warranties and Disclaimer

14.1. IMPORTANT: It is agreed between the Parties that the Licensee is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Cloud Product. Without prejudice to the Licensor’s obligations provided in Clause 7 “Licensor’s Obligations” of these CTU, the Licensee is fully responsible for the choice of the Cloud Product. In case of doubt, the Licensee is invited to call the support before any purchase at  contact@elements-apps.com .

14.2. Each Party represents and warrants that it has the legal power and authority to enter into these CTU. If the Licensee is an entity, he warrants that these CTU are entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of these CTU.

14.3. The Licensor warrants that it will take reasonable commercial efforts to ensure that the Cloud Product, in the form and when provided to the Licensee, will be free of any Viruses, malware, or other harmful code.

14.4. The Licensor warrants that the Cloud Products will not violate the Intellectual Property Rights of any third parties and, therefore, guarantees the Licensee against any legal action or claims brought by third parties (hereafter referred to as a “Third Party Claim”) alleging that the use of the Cloud Product by the Licensee infringes or violates the rights of the third party under applicable laws. Under this warranty, the Licensor shall bear reasonable lawyers’ fees and other reasonable legal fees that the Licensee may be required to incur or suffer as a result of such legal action or claim, as well as all the direct damages the Licensee may be sentenced to pay by a binding court decision.

14.5. On becoming aware of a Third Party Claim , the Licensee shall (i) promptly notify the Licensor of such Third Party Claim (ii) provide the Licensor with the sole control over the defence and/or settlement of such Third Party Claim (with the Licensee retaining the right to participate in such Third Party Claim (but not control) with its own legal counsel, at its own expense), and (iii) give reasonable cooperation and assistance to the Licensor, at the Licensor’s cost, with regard to such Third Party Claim.

14.6. This warranty will not be applicable if the Third Party Claim arises from (i) an allegation that does not state with specificity that the Cloud Product is the basis of the Third Party Claim, (ii) the use or combination of the Cloud Product with any other material not developed by the Licensor, (iii) the use of the Cloud Product not in accordance with these CTU, (iv) a modification of the Cloud Product by any other party than the Licensor.

14.7. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, THE LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. THE LICENSOR WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE LICENSOR. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THE LICENSOR 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 CLOUD PRODUCT OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY CLOUD PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE CLOUD PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, CLOUD PRODUCT, SYSTEM, OR DATA; (C) THE CLOUD PRODUCT (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE CLOUD PRODUCT) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE CLOUD PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

15. Limitation of liability

15.1. The Licensor shall be liable to the Licensee for the foreseeable and direct damages in connection with these CTU, to the exclusion of indirect damages such as loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of Cloud Product, Data or information, failure of security mechanism, interruption of business, costs of delay or for any indirect or consequential damage of any kind.

15.2. Except as expressly and specifically provided in these CTU, the Licensee assumes sole responsibility for results obtained from the use of the Cloud Product by the Licensee, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Licensor by the Licensee, or in the case the Licensee does not implement the required actions.

15.3. In any event and without prejudice to the Licensee’s obligation to pay the Charges, the total liability of the Licensor to the Licensee arising under or in connection with these CTU shall not in respect of any Year, exceed the amount actually paid or payable by the Licensee under these CTU in the six (6) months immediately preceding the claim.

15.4. Nothing in these CTU shall limit or exclude either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, gross negligence or wilful or deliberate misconduct, or any other liability which cannot be limited or excluded by applicable law.

15.5. The Licensor will have no obligations or responsibility under these CTU for issues caused by the use of any third-party hardware or cloud product not provided by itself.

15.6. If the Licensee enables or uses third-party products or services with the Cloud Product, the Licensee acknowledges that the third-party providers may access or use the Data of the Licensee as required for the interoperation of their products and services with the Cloud Product. The Licensee is solely responsible for the decision to permit any third-party provider or third-party product or service to use the Data of the Licensee. It is Licensee’s responsibility to carefully review the CTU between itself and the third-party provider, as provided by the applicable third-party provider. THE LICENSOR DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

16. Sub-licensing

16.1. The Licensee acknowledges and agrees that the Licensor may engage subcontractors without any prior written consent for the execution of these CTU.

17. Termination

17.1. These CTU are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription terms.

17.2. The Licensor may terminate the CTU if the Licensee uses the Cloud Product not in accordance with these CTU.

17.3. Upon any expiration or termination of the CTU, the right to use the Cloud Products terminates and the Licensee is not authorised to use the Cloud Products. Except where an exclusive remedy may be specified in the CTU, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under the CTU, by law, or otherwise.

17.4. On termination or expiry of the CTU, the Licensor shall delete any information relating to the business of the Licensee stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its possession or under its control outside the premises of the Licensee, except the information the Licensor shall keep complying with laws, regulations or contractual obligations.

17.5. The following sections will survive any termination or expiration of the CTU: Clause 10 “Fees and payment”, Clause 11 “Intellectual Property Rights”, Clause 12 “Confidentiality, Clause 14 “Warranties and Disclaimer”, Clause 15 “Limitation of liability”, Clause 20 “Governing Law – Dispute Resolution”, Clause 21 “Miscellaneous and General”.

17.6. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Termination Date or expiry, including the right to claim damages in respect of any breach of these CTU which existed at or before the Termination Date or expiry, shall not be affected.

18. Terms applying to Licensee’s Data

18.1. The Licensee retains all right, title and interest in and to its Data in the form submitted to the Cloud Products. Subject to these CTU, and solely to the extent necessary to provide the Cloud Products to the Licensee, the Licensee grants the Licensor a worldwide, limited term licence to access, use, process, copy, distribute, perform, export, and display its Data. Solely to the extent that reformatting its Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing licence also includes the right to make modifications and derivative works.

18.2. The use of Cloud Products must comply at all times with these CTU, and all laws. The Licensee represents and warrants that: (i) the Licensee has obtained all necessary rights, releases and permissions to submit all its Data to these CTU and to grant the rights granted to the Licensor in these CTU and (ii) its Data and its submission and use as the Licensee authorises in these CTU will not violate (1) any laws, (2) any third-party Intellectual Property Rights, privacy, publicity or other rights, or (3) any of Licensee or third-party policies or terms governing its Data. Other than the obligations described in Clause 13 “Personal Data” and the Licensor’s privacy policy, the Licensor assumes no responsibility or liability for Licensee’s Data, and the Licensee is solely responsible for its Data and the consequences of submitting and using it with the Cloud Products.

18.3. The Licensee will not submit to the Cloud Products (or use the Cloud Products to collect) any Sensitive Data. Notwithstanding any other provision to the contrary, the Licensor has no liability under these CTU for Sensitive Data.

18.4. The Licensor has no obligation to monitor any content uploaded to the Cloud Products. Nonetheless, if the Licensor deems such action necessary based on Licensee’s violation of these CTU, or in response to takedown requests that the Licensor receives, the Licensor may (1) remove Licensee’s Data from the Cloud Products or (2) suspend Licensee’s access to the Cloud Products. The Licensor will use reasonable efforts to provide the Licensee with advance notice of removals and suspensions when practicable, but if the Licensor determine that Licensee’s actions endanger the operation of the Cloud Product or other users, the Licensor may suspend the access or remove Licensee’s Data immediately without notice.

19. Publicity Rights

19.1. The Licensor may identify the Licensee as a customer in its promotional materials, unless the Licensee asks for stopping doing so at the following address:  contact@elements-apps.com .

20. Governing Law – Dispute Resolution

20.1. These CTU and any disputes or claims arising out of or in connection with them or their subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and interpreted under French law.

20.2. If either Party (hereafter referred to as the “First Party”) believes in good faith that the other Party (hereafter referred to as the ”Other Party”) has breached any term of these CTU, then the First Party shall notify the Other Party, in writing setting forth in reasonable detail the nature of the alleged breach (hereafter referred to as the “Notice of Breach”). If the Other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach. If, however, the Other Party disputes the validity of the Notice of Breach, then the Parties shall comply with the following provisions in order to expedite the review, verification, cure and remedy of any such breach.

20.3. Any dispute to be resolved pursuant to these CTU shall first be submitted for resolution to the authorised contacts of each Party. If such authorised contacts are unable to resolve the dispute within fourteen (14) days after the date on which the Notice of Breach is received by the Other Party (or such longer time as it mutually agreed in writing), then each Party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute as provided in Clause 20.4 hereunder.

20.4. Each Party irrevocably agrees that the courts of Paris, France, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these CTU or their subject matter or formation (including non-contractual disputes or claims), not already settled amicably by the Parties under Clauses 20.2 or 20.3.

21. Miscellaneous and General

21.1. Parties must for the duration of these CTU maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under these CTU.

21.2. Nothing in these CTU is intended to, or shall operate to, create a partnership between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

21.3. Each Party shall not be liable for any delay or breach in any of its obligations pursuant to these CTU which originates from a force majeure event within the meaning of Article 1218 of the French Civil Code.

21.4. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any such invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were modified in any way, the Parties shall negotiate in good faith to modify such provision so that, as modified, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

21.5. No failure or delay by a Party to exercise any right or remedy provided under these CTU or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.6. The rights and remedies provided under these CTU are in addition to, and not exclusive of, any rights or remedies provided by law.

21.7. Neither Party may assign (except by way of security), transfer, sub-contract or otherwise dispose of these CTU and any of its rights or obligations thereunder, without the prior written consent of the other Party.

21.8. The CTU constitute the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement between them relating thereto. In entering into these CTU neither Party has relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether made innocently or negligently and whether or not made in writing) of any person (whether or not party to these CTU) which is not expressly set out in these CTU.

Privacy Policy

ELEMENTS APPS (hereafter “the Company” or “the Data Controller”) is committed to respecting your privacy  and the data protection regulations. The data protection regulations include the European General Data Protection Regulation 2016/679 of 27 April 2016 (hereafter referred to as “the GDPR”) and the French law n°78-17 of January 6th, 1978 on information technology, data files and civil liberties modified by the French law n°2018-493 of June 20th, 2018 (hereafter referred to as “the French Data Protection Act”).

Please read the following to learn more about the Company’s privacy policy (hereafter “the Policy”). This Policy refers to websites of the Company available at the following URLs: https://elements-apps.com/ and their subdomains like:   https://support.elements-apps.com/  https://doc.elements-apps.com (hereafter “the Site(s)”) )”) and also the purchase of Elements products on the Atlassian marketplace exploited by the company Atlassian Corporation Plc.

Please do not submit or provide any personal data to the Company without having read, understood, and accepted this Policy in full. If you have any question about this Policy, please contact the Company:

ELEMENTS APPS

2 Esplanade Compans Caffarelli – Bât E

31000 Toulouse, France

Or send an email to: dpo-gdpr@elements-apps.com

1. DATA CONTROLLER IDENTITY

The Data Controller is ELEMENTS APPS, Société par Actions Simplifiée with a capital of 1 623 200,00 euros, registered in the Trade Registry of Toulouse as number 834 024 390, with its head office at VALIANTYS – ELEMENTS, 2 Esplanade Compans Caffarelli Bât. E, 31000 Toulouse, France, represented by Alexandre Alquier in his capacity as Chief executive officer. This means that the Company is the legal entity that processes the personal data on the Sites and implements procedures to safeguard this data and respect the rights of the data subjects.

2. FOR WHICH PURPOSES DOES THE COMPANY USE YOUR PERSONAL DATA?

The Company collects your personal data for the following purposes:

3. ON WHICH LEGAL BASIS DOES THE COMPANY USE YOUR PERSONAL DATA?

The Company collects and processes information about you only where it has a legal basis to do so. In addition to instances where your consent has been collected, the processing of your personal data for the aforementioned purposes is necessary for the Company to:

4. WHICH PERSONAL DATA DOES THE COMPANY COLLECT?

4.1. Data you send to the Company directly

You directly provide to the Company personal data when you use the Sites or interact with the Company. This occurs on the following actions:

The personal data the Company collects when you use the Sites are:

Depending on the context of the communication (statutory or contractual requirement, or a requirement necessary to enter into a contract), if you do not provide us with this information, the Company will not be able to process your request.

4.2. Data the Company indirectly collects

The Company collects your personal data when you purchase Company’s products via the Atlassian marketplace exploited by Atlassian Corporation Plc. The personal data collected via the Atlassian marketplace are:

4.3 Data the Company collects via cookies

To improve your user experience when browsing on the Sites, the Company uses “cookies”.

A cookie is a component stored and read when you browse on the Sites, which collects personal data to optimize your user browsing experience. Cookies are used to save information about your browsing history of the Sites, making it possible to decipher that information when you visit again the Sites, thereby making subsequent browsing easier (such as adjusting the language settings).

The data collected through cookies is intended for the internal departments of the Company and its sub-contractors for the purpose of executing tasks assigned by the Company regarding the use of the Sites.

According to your browser preferences, the Company stores on your computer or mobile devices cookies for the following purposes:

The Company’s cookies are erased from the platform when you leave the Sites.

For more information on how the Company uses cookies, please read the Company’s Cookie Policy (www.elements-apps.com/cookie-policy/).

5. HOW LONG DOES THE COMPANY KEEP YOUR PERSONAL DATA?

The Company will not retain your personal data longer than necessary to fulfill the purposes for which it was collected or to fulfill legal obligations, or as permitted by law, e.g. to defend legal claims. Afterwards, the Company will delete your personal data. The individual retention periods depend on the type of personal data and the purpose of its processing.

Depending on the type of data collected, the Company applies the following retention periods:

Type of personal dataRetention period
Cookies stored by the Company on your computer or mobile devicesThirteen (13) months from the date of your consent
Data for prospection purposesThree (3) years from the date of inactivity on your account
Inactive customer or user accountThree (3) years from the date of inactivity on your account
User name in blog or support issue signatureThree (3) years from the date of inactivity on your account

6. WHO RECEIVES YOUR PERSONAL DATA?

6.1. Recipients of your personal data

The data collected on the Sites are communicated to the Company’s marketing, sales, and human resources departments to fulfill the aforementioned purposes.

The Company also discloses your personal data to its authorized partners:

In these specific cases, the Company requires its partners to respect data privacy regulations by implementing strict confidentiality and data protection policies.

Please note that the Company will not disclose your personal data to third parties which are not authorized to process them.

6.2. International transfer of your personal data

Some of the aforementioned recipients may not be located in the European Union (hereafter referred as to the “EU”). For that reason, the Company may transfer your personal data outside the EU.

In this case, the Company guarantees an adequate level of protection of your personal data by implementing contractual restrictions regarding confidentiality and security in line with applicable data protection regulations.

The Company verifies annually each U.S.-based company has a valid Privacy Shield on the site https://www.privacyshield.gov/european-businesses

7.  WHAT ARE YOUR PRIVACY RIGHTS?

In accordance with the GDPR and the French Data Protection Act, and to the extent permitted by applicable data protection regulations, you have the right to:

Questions, comments, requests, and complaints must be emailed to the following address: dpo-gdpr@elements-apps.com,or mailed to the Company:
ELEMENTS APPS
2 Esplanade Compans Caffarelli – Bât E
31000 Toulouse, France.

All requests will be handled promptly, and no longer than one month after receiving the request. This period may be extended to two (2) months considering the complexity and number of requests. The Company will inform you by electronic means when the request was made by electronic means unless otherwise requested by you in case of extension of the period of one (1) month, within one (1) month of receipt of the request, together with the reasons of the delay.

8. BLOG COMMENTS

Articles posted to the Company’s Blog (the “Blog” available at the following URLs: https://elements-apps.com/blog) may be freely viewed by you and may receive comments via Disqus, a free service for adding comments to several areas of the Blog.

In order to post a comment, you must sign in by creating a Disqus account or logging in to his or her existing Disqus account if he or she already has one.

If you intend to post a comment on the Blog, please read Disqus’ privacy policy before signing up. You can find it at the following address: https://help.disqus.com/customer/portal/articles/466259-privacy-policy .

Disqus Inc. is a company under American law. Data collected by Disqus is hosted and processed in the United States.

For any request or dispute with Disqus Inc. Regarding your personal data, you can contact it at privacy@disqus.com.

9. LINKS TO OTHER SITES AND SOCIAL MEDIA

The Sites may contain links to the websites of our partners or third-party companies.

Note that these websites have their own privacy policies and that the Company waives all liability for how these sites use the information collected when you click on those links.

Please review these sites’ privacy policies before sending them your personal data.

10. AMENDMENTS TO THIS POLICY

The Company reserves the right to update this Policy in order to adapt it to new practices and service plans or to changes in the present applicable data protection regulations.

Any substantial change of this Policy relating to how the Company processes your personal data will be announced visibly on the Sites. In the event of an update, the Policy date will be updated to indicate the day when the amendments were made.

The purpose of this cookie policy (hereafter referred to as “the Cookie Policy”) is to provide you information on the operation and objectives of cookies, on how ELEMENTS APPS(hereafter “the Company”) uses cookies and how to set your cookie preferences. This Policy refers to the websites of the Company available at the following URLs: https://elements-apps.com/ and its subdomains like  https://support.elements-apps.com/    https://doc.elements-apps.com   (hereafter “the Site(s)”).

1. What is a cookie?

A cookie is a component stored and read when you browse on the Sites, which collects personal data to optimize your user browsing experience. Cookies are used to save information about your browsing history of the Sites, making it possible to decipher that information when you visit again the Sites, thereby making subsequent browsing easier (such as adjusting the language settings).

There are different categories of cookies:

Cookies can be classified according to their purposes:

2. How does the Company use cookies?

The cookies used on the Sites are:

2.1  Company’s cookies

Cookies installed by the Company on the Sites are the following:
Updated September 8, 2020

NameProviderPurposeExpiry
JSESSIONIDsupport.elements-apps.comThe Company uses cookies in order to enable you to use the services on the Sites.Session
JiraSDSamlssoLoginV2support.elements-apps.comThe Company uses cookies in order to enable you to use the services on the Sites.Session
atlassian.xsrf.tokensupport.elements-apps.comThe Company uses cookies in order to enable you to use the services on the Sites.Session
alt.xsrf.tokendoc.elements-apps.comThe Company uses cookies in order to enable you to use the services on the Sites.Session
confluence.user.historydoc.elements-apps.comThe Company uses cookies in order to improve user experience.2 years
cookielawinfo-checkbox-necessaryelements-apps.comSave cookie preferences1 hour
cookielawinfo-checkbox-non-necessaryelements-apps.comSave cookie preferences1 year
viewed_cookie_policyelements-apps.comSave cookie preferences1 year

2.2 Third-party cookies

The Company uses services offered by third parties that use cookies.

2.2.A. Analytic cookies

Google Analytics is a web analytics service provided by Google Inc. (“Google”). Google uses data collected via cookies to track and analyze the Company’s use of that data, prepare reports on its activities, and share them with other Google services. Google may use the collected Data to contextualize and customize the advertisements of its own advertising network.

You can read Google Analytics’ privacy policy at the following address:

https://support.google.com/analytics/answer/6004245?hl=en

We use Hotjar in order to better understand our users’ needs and to optimize this service and experience. Hotjar is a technology service that helps us better understand our users’ experience (e.g. how much time they spend on which pages, which links they choose to click, what users do and don’t like, etc.) and this enables us to build and maintain our service with user feedback. Hotjar uses cookies and other technologies to collect data on our users’ behavior and their devices. This includes a device’s IP address (processed during your session and stored in a de-identified form), device screen size, device type (unique device identifiers), browser information, geographic location (country only), and the preferred language used to display our website. Hotjar stores this information on our behalf in a pseudonymized user profile. Hotjar is contractually forbidden to sell any of the data collected on our behalf.

For further details, please see the ‘about Hotjar’ section of Hotjar’s support site.

The analytic cookies used are detailed in table below:

Updated September 8, 2020

NameProviderPurposeExpiry
_gaGoogleVisitor identification2 years
_gidGoogleUser journey24 hours
_gatGoogleThrottling request rate10 minutes
CollectGoogleUsed to send data to Google Analytics about visitor device and behaviorSession
_hjClosedSurveyInvitesHotjarHotjar cookie that is set once a visitor interacts with an External Link Survey invitation modal. It is used to ensure that the same invite does not reappear if it has already been shown.365 days
_hjDonePollsHotjarHotjar cookie that is set once a visitor completes a survey using the On-site Survey widget. It is used to ensure that the same survey does not reappear if it has already been filled in.365 days
_hjMinimizedPollsHotjarHotjar cookie that is set once a visitor minimizes an On-site Survey widget. It is used to ensure that the widget stays minimized when the visitor navigates through your site.365 days
_hjShownFeedbackMessageHotjarHotjar cookie that is set when a visitor minimizes or completes Incoming Feedback. This is done so that the Incoming Feedback will load as minimized immediately if the visitor navigates to another page where it is set to show.365 days
_hjidHotjarHotjar cookie that is set when the customer first lands on a page with the Hotjar script. It is used to persist the Hotjar User ID, unique to that site on the browser. This ensures that behavior in subsequent visits to the same site will be attributed to the same user ID.365 days
_hjRecordingLastActivityHotjarThis should be found in Session storage (as opposed to cookies). This gets updated when a visitor recording starts and when data is sent through the WebSocket (the visitor performs an action that Hotjar records).Session
_hjTLDTestHotjarWhen the Hotjar script executes we try to determine the most generic cookie path we should use, instead of the page hostname. This is done so that cookies can be shared across subdomains (where applicable). To determine this, we try to store the _hjTLDTest cookie for different URL substring alternatives until it fails. After this check, the cookie is removed.Session
_hjUserAttributesHashHotjarUser Attributes sent through the Hotjar Identify API are cached for the duration of the session in order to know when an attribute has changed and needs to be updated.Session
_hjCachedUserAttributesHotjarThis cookie stores User Attributes which are sent through the Hotjar Identify API, whenever the user is not in the sample. These attributes will only be saved if the user interacts with a Hotjar Feedback tool.Session
_hjLocalStorageTestHotjarThis cookie is used to check if the Hotjar Tracking Script can use local storage. If it can, a value of 1 is set in this cookie. The data stored in_hjLocalStorageTest has no expiration time, but it is deleted almost immediately after it is created.Under 100ms
_hjIncludedInPageviewSampleHotjarThis cookie is set to let Hotjar know whether that visitor is included in the data sampling defined by your site’s pageview limit.30 minutes
_hjIncludedInSessionSampleHotjarThis cookie is set to let Hotjar know whether that visitor is included in the data sampling defined by your site’s daily session limit.30 minutes
_hjAbsoluteSessionInProgressHotjarThis cookie is used to detect the first pageview session of a user. This is a True/False flag set by the cookie.30 Minutes

2.2.B. Interaction cookies

Disqus is a free service that makes it possible to add comments to multiple parts of the Sites.

You can read Disqus’ privacy policy at the following address:

https://help.disqus.com/customer/portal/articles/466259-privacy-policy

The interaction cookies used are detailed in table below:

NameProviderPurposeExpiryType
aet-dismissdisqus.com / Elements blogRequired for the Add comment featurePersistentHTML
drafts.queuedisqus.com / Elements blogRequired for the Add comment featurePersistentHTML
langads.linkedin.com / Elements blogUser preferred languageSessionHTTP
lang dayslinkedin.com   / Elements blogUser preferred languageSessionHTTP
submitted_posts_cachedisqus.com  / Elements blogRequired for the Add comment featurePersistentHTML

2.2.C. Marketing cookies

Pardot is a web marketing automation solution that allows the company to create, deploy, and manage online marketing campaigns from one central platform. The Company uses the Pardot suite to collect information about you to the Company’s Sites. The personal information is stored in Pardot/Salesforce if you fill out a form, such as to register for events, request information, or sign up for the Company’s emails. Information such as the IP address, operating system, web browser, and the pages viewed are collected by Pardot.

You can read Pardot’s privacy policy at the following address:

https://www.salesforce.com/company/privacy

LinkedIn uses cookies in the LinkedIn profile widget on to track user interaction between the site and personal LinkedIn profile. There is also LinkedIn Ad analytics.

You can read Linkedin’s privacy policy at this address:

https://www.linkedin.com/legal/cookie-policy
NameProviderPurposeExpiryType
UserMatchHistoryLinkedInElements blogUsed to cross-site tracking29 daysHTTP
bcookieLinkedInBrowser ID cookie set from LinkedIn to share buttons and tags1 yearHTTP
bscookieLinkedInCookie used for Sign-in with Linkedin and/or for Linkedin follow feature2 yearsHTTP
lidcLinkedInCookie used for Sign-in with Linkedin and/or for Linkedin follow feature1 dayHTTP
VISITOR_INFO1_LIVEYoutubeElements blogTries to estimate the users’ bandwidth on pages with integrated YouTube videos.179 daysHTTP Cookie
YSCYoutubeElements blogRegisters a unique ID to keep statistics of what videos from YouTube the user has seen.SessionHTTP Cookie
yt-remote-cast-installedYoutubeElements blogStores the user’s video player preferences using embedded YouTube videoSessionHTML Local Storage
yt-remote-connected-devicesYoutubeElements blogStores the user’s video player preferences using embedded YouTube videoPersistentHTML Local Storage
yt-remote-device-idYoutubeElements blogStores the user’s video player preferences using embedded YouTube videoPersistentHTML Local Storage
yt-remote-fast-check-periodYouTubeElements blogStores the user’s video player preferences using embedded YouTube videoSessionHTML Local Storage
yt-remote-session-appYouTubeElements blogStores the user’s video player preferences using embedded YouTube videoSessionHTML Local Storage
yt-remote-session-nameYouTubeElements blogStores the user’s video player preferences using embedded YouTube videoSessionHTML Local Storage

3. How to manage your cookie preferences?

You have several options to manage your cookie preferences.

3.1 Browser settings

Most of the browsers have default settings which accepts the use of cookies. However, you can choose to reject all the cookies or accept in full or in part. You can also delete cookies on your devices via your browser.

Each browser configuration of cookie preferences is different so it is important to refer to the relevant browser’s webpage, notably:

3.2 Third party’s management module

You can also opt out third parties’ cookies by visiting their website. For instance, in order to opt out Google Analytics cookies, visit the following page: https://tools.google.com/dlpage/gaoptout?hl=fr

3.3 Opposition platforms

Marketing professionals’ platform may allow you to opt in or opt out cookies from member companies. Such mechanisms prevent from the use of cookies delivering ads relevant to you and your interests.

You can visit the website www.youronlinechoices.com in order to learn how to opt out of advertising cookies.

4. Amendments to this Cookie Policy

The Company may make changes to this Cookie Policy.

Any substantial change in this Cookie Policy will be announced visibly on the Sites.

5. How to contact the Company?

If you have any question about this Cookie Policy, please contact contact@elements-apps.com.

This web site (“the Site”) is published by ELEMENTS APPS (hereafter “the Company” or “the Data Controller”) , Société par Actions Simplifiée with a capital of 803 625,00 euros, is registered in the Trade Registry of Toulouse as number 834 024 390, with its head office at

ELEMENTS APPS,
2 Esplanade Compans Caffarelli – Bât E,
31000 Toulouse, France

Email address: contact@elements-apps.com

Code APE 6202A

Website 

The Site is published on the domain elements-apps.com and includes all the subdomains like https://support.elements-apps.com/ and https://doc.elements-apps.com

Publishing director

The Director of publication is Alexandre Alquier, Chief Executive Officer of the Company.

Hosting

The Site is hosted by Amazon Web Services, Inc.

Amazon Web Services LLC

PO Box 81226, Seattle, WA 98108-1226

aws.amazon.com

Copyright Notice

All rights of reproduction are reserved, including for downloadable documents and photographic representations.

© Copyright 2024, ELEMENTS APPS

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