End User License Agreement

BY INSTALLING OR USING ANY PART OF THE SOFTWARE, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT ("YOU") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT") AND OUR PRIVACY POLICY. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT AND OUR PRIVACY POLICY, YOU WILL NOT HAVE ANY RIGHT TO USE THE SOFTWARE. GLIFFY, INC.’S (“GLIFFY”) ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. License.

Subject to Your full compliance with all the terms and conditions of this Agreement, Gliffy grants You a nontransferable, nonsublicensable, nonexclusive license, revocable at Gliffy’s discretion, to use the software in object code form only that You will receive through this download (the “Client”), the accompanying documentation, and any additional software that may be made available by Gliffy from time to time for use with the Client (collectively “Software”) for Your non-commercial use only and only in accordance with the accompanying documentation. Any other use must be pre-approved by Gliffy in writing. This Agreement allows You to run the Software only as received at the time of download, in a single installation of Jira or Confluence, for the number of authorized users and nodes.

2. Restrictions.

You shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software or license key (if any); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Software (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); or (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software for any commercial purpose. You shall maintain and not remove or obscure any proprietary notices on the Software, and shall reproduce such notices exactly on all permitted copies of the Software. As between the parties, Gliffy shall own all title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof. You understand that Gliffy or its licensors may modify or discontinue offering the Software at any time. This Agreement does not give You any rights not expressly and unambiguously granted herein.

3. Intellectual Property; Content.

As a condition to Your use of the Software, You represent, warrant and covenant that You will not use the Software: (i) to infringe the intellectual property or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate, transfer or store information or materials in any form or format ("Content") that are harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable or that otherwise violate any law or right of any third party; (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or violate the security of any computer network; or (v) to run Maillist, Listserv, “bots,” “robots,” any form of auto-responder, or "spam," or any processes that run or are activated while You are  not logged in. You, not Gliffy, remain solely responsible for all Content that You upload, post, e-mail, transmit, or otherwise disseminate using, or in connection with, the Software. You acknowledge that all Content You access through use of the Software is accessed at Your own risk and You will be solely responsible for any damage or liability to any party resulting from such access.

4. Support; Equipment.

This Agreement entitles You to email support, upgrades, patches, enhancements, and fixes (collectively, “Support”) for one (1) year following the commencement of a fully paid support term for this version of the Software (or the next version, at Gliffy’s sole discretion, during such one (1)- year support term), provided that You comply with all the terms and conditions of this Agreement. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Software, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Software.

5. Warranty Disclaimer.

THE SOFTWARE IS PROVIDED “AS IS”. GLIFFY MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND GLIFFY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, GLIFFY DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. ALL THE FOREGOING DISCLAIMERS ALSO APPLY IN FULL WITH RESPECT TO GLIFFY’S LICENSORS, SUPPLIERS, DISTRIBUTORS, CONTRACTORS AND AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

6. Limitation of Remedies and Damages.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL GLIFFY BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. GLIFFY’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO GLIFFY, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE GLIFFY’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF GLIFFY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. ALL THE FOREGOING LIMITATIONS ALSO APPLY WITH RESPECT TO GLIFFY’S SUPPLIERS, LICENSORS, DISTRIBUTORS, CONTRACTORS AND AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

7. Indemnity.

You agree that Gliffy and its licensors, distributors, contractors and agents shall have no liability whatsoever for any use You make of the Software. You shall indemnify and hold harmless Gliffy and its licensors, suppliers, distributors, contractors and agents from any claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from (a) Your failure to comply with any term of this Agreement; or (b) use of the Software in combination with other hardware, software or other systems that would have been avoided but for such use or combination. To the maximum extent permitted by applicable law, You hereby release, and waive all claims against, Gliffy and its licensors, suppliers,  employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with use of the Software. If You are a California resident, You waive Your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under all analogous laws, statutes or regulations.

8. Termination.

This Agreement shall continue until terminated as set forth in this section. You may terminate this Agreement at any time. Your rights under this Agreement will terminate automatically and irrevocably without notice from Gliffy if You fail to comply with any term(s) of this Agreement, including any attempt to transfer a copy of the Software or Software license key (if any) to another party except as provided in this Agreement. Upon termination for any reason, the Agreement granted hereunder shall terminate and You shall immediately discontinue all use of the Software and destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software, but the terms of this Agreement will otherwise remain in effect.

9. Export Law Assurances.

In connection with the Software, You agree to comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and You agree not to export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.

10. Miscellaneous.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind Gliffy in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with Gliffy’s prior written consent. Gliffy may transfer, assign or delegate this Agreement and its rights and obligations without consent. You grant Gliffy the right to include Your name, trademark, logo or similar identifying material (“Your Marks”) in a listing of customers on Gliffy’s website and in other promotional material in relation to the Software. Within thirty (30) days of Your written request, Gliffy will remove Your Marks from its website customer list and will make no further use of Your marks in any future material promoting the Software. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. Notwithstanding the foregoing sentence, (but without limiting Gliffy’s right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising with respect to this Agreement shall be referred to an arbitrator affiliated with the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in San Francisco, California using the English language and pursuant to the rules of (and administered by) JAMS. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. Both parties agree that this Agreement is the complete and  exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and, except as otherwise provided herein, that all modifications must be in writing.

11. Trial Use Rights and Conversion.

If the Software is a trial edition, then this Section applies to You. You may only use the trial software for internal evaluation purposes. You may convert your trial rights at any time to the full rights described in the rest of these license terms by purchasing a commercial license and obtaining a product key from Gliffy. Your rights to use the trial Software are limited to 30 days or such other trial period as is authorized by Gliffy in the documentation accompanying the trial Software. After the expiration of the trial period, without conversion, the trial Software will stop running. During the trial period, Section 4 of this Agreement does not apply and Your license pursuant to Section 1 is modified by this Section 11. The remaining sections of this Agreement apply.

12. Installation Information.

When the Software is installed for the first time, the Software may collect certain information from the computer on which it is installed regarding installation of the Software and the host software with which the Software is used (e.g. Jira or Confluence), such as identification of the host software and its license type. Additionally, the Software contains certain user tracking features that enable Gliffy to collect certain information regarding Your Software usage such as language, web browser and product features to help improve the overall usability of the Software. This information is used by Gliffy to evaluate and improve product installations and Gliffy’s products and services. Gliffy may also share it with the vendor of the host software for their use in improving how their products and services. The collected information may be transferred to Gliffy in the United States or other countries that may have less protective data protection laws than the region in which You are situated (including the European Union). Gliffy does not collect user information such as names or emails of end users.