TERMS OF SERVICE
LAST UPDATED: 12 JANUARY, 2020
This Terms of Service (the “Terms”) is a binding legal agreement between Quirk Consulting (“Quirk Consulting”, “we”, “our”, and “us”), and the customer (“you” and “your”), the user of the Atlassian Marketplace Platform, being a person, entity or subscribing to our Software-as-a-Service (“SaaS”) Products (as defined below), hereinafter referred to together as the “Parties” and individually as a “Party”.
These Terms govern your use of our cloud-based plug-in applications and SaaS products, offered to you through the Atlassian Marketplace Platform which are both offered to you:
- on a subscription basis (“Subscription-Based SaaS Products”); or
- for free i.e. no billing (“Free SaaS Products”).
Subscription-Based SaaS Products and Free SaaS Products shall be hereinafter collectively referred to as the “SaaS Product(s).”
These Terms apply whether you purchase our SaaS Products directly from Quirk Consulting, through the Atlassian Marketplace Platform, through an authorised reseller or otherwise. If you purchase through a reseller, your license rights shall be stated in the order provided to you by the reseller. Resellers are not authorised to make any promises, commitments or impose additional terms and conditions on our behalf, and we are not bound by any obligations to you other than what is included in these Terms.
1. ACCEPTANCE OF TERMS
These Terms apply to all our SaaS Products licensed to you. Before installing, and/or using the SaaS Products, please carefully read these Terms. By installing and/or using the SaaS Products you acknowledge that you have read, understood and agree to be bound by these Terms including without limitation the terms of other documents and/or policies that are incorporated herein by reference. If you are accepting these Terms on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity under these Terms.
If you do not agree to these Terms, or you do not have the necessary authority you are not authorised to install and/or use the SaaS Products for any purpose whatsoever. You are to promptly unsubscribe from the SaaS Products.
Subject to these Terms, and subject to the termination rights stipulated under Clause 15, the duration of these Terms shall continue in force for the period of:
- the Subscription License (defined below) or the renewal period of the Subscription-Based SaaS Products;
- the Evaluation Period (defined below) of the Evaluation License (defined below); or
- your utilisation of the Free SaaS Products as provided on the Atlassian Marketplace Platform until the Free SaaS Products are uninstalled and/or removed from our SaaS Product offerings.
3. SAAS PRODUCTS
To make use of our SaaS Products, you may be required to register on the Atlassian Marketplace Platform. You are to ensure that any information that you provide on the Atlassian Marketplace Platform is correct, complete and current, as you shall be responsible for updating the accuracy of your information.
Once you have submitted an order for the subscription and/or renewal and/or use of the SaaS Products via the Atlassian Marketplace Platform or its authorised reseller, you shall be directed on your authorised use of the SaaS Products which shall include but not be limited to: the type of license you have acquired, your name, contact details, the number of permitted users inside the Atlassian product(s) and the SaaS Product(s), the required fees, and any other related information as reasonably required.
The SaaS Products shall be sent electronically to you and you shall be responsible for the installation of the SaaS Products.
4. GRANT OF LICENSE
These Terms entitle you to install and use one copy of the SaaS Products. These Terms do not permit the installation or use of multiple copies of the SaaS Products on a system that allows shared use of applications. Multiple copy use or installation is only allowed if you obtain the appropriate license for each copy of the SaaS Products. Furthermore, the SaaS Products may only be installed and used on the hardware systems you own, lease or which are controlled by you, or your third party service provider, providing you remain responsible for the third party’s compliance with the terms and conditions of these Terms.
Subject to these Terms, you are granted a worldwide, limited, non- transferable, non-exclusive, non-sublicenseable, as-is right to install and use the SaaS Products for the term and applicable licensing fee that is associated with the particular SaaS Products you choose to purchase.
The SaaS Products are licensed to you either on a Subscription License, an Evaluation License, or a Free License (as further defined under section 4(iii) of the Terms) subject to the following terms:
(I) SUBSCRIPTION LICENSE
Subscription-Based SaaS Products shall be granted on a time specific limit as per the subscription license (“Subscription License”) providing you with a worldwide, non-exclusive, nontransferable, non-sublicensable use of the Subscription-Based SaaS Products, subject to automatic renewal for successive monthly or annual terms unless either Party notifies the other of nonrenewal or we cease to make a particular Subscription Service available. If you cancel the Subscription-Based SaaS Products, your subscription will terminate at the end of the then-current billing cycle, and you will not be entitled to any refunds for amounts accrued or paid prior to such termination. You acknowledge and agree to the use of the Subscription-Based SaaS Products, which are provided to you as a cloud service, and are hosted by us and/or the Atlassian Marketplace Platform. You also acknowledge and agree that Quirk Consulting and/or the Atlassian Marketplace Platform may make changes to the Subscription-Based SaaS Products from time to time.
(II) EVALUATION LICENSE
We may provide you, at our sole discretion, with a limited license for the purposes of assessing the functionality of the SaaS Products (“Evaluation License”). The Evaluation License will provide you with the full version of the SaaS Product(s) for free for thirty (30) days) (“Evaluation Period”), after which you must either purchase or uninstall the SaaS Product. Upon the expiry of the Evaluation Period, you shall be obligated to pay for the full license fee or stop using the SaaS Products and all components of the SaaS Products shall cease to function.
(III) FREE LICENSE
Free SaaS Products shall be granted to you at no cost, and shall be provided to you on a time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable limited license (“Free License”). Your use of the Free SaaS Products shall be subject to any other terms and conditions as we deem necessary and shall be for a stipulated period of time.
You acknowledge that we may cancel the Free SaaS Products at any time and for whatever reason, in our sole discretion. You may, however; upgrade to a similar product offered as a Subscription-Based SaaS Product, if available, and all your applicable data will be transferred by us automatically.
The SaaS Products are licensed, not sold, to you and we shall retain ownership of all the SaaS Products, including copies of the SaaS Products. Accordingly, the following restrictions shall apply:
(I) RESTRICTIONS ON TRANSFER
You may not assign, your rights and obligations under these Terms, or redistribute, encumber, distribute, sell, rent, lease, sublicense, or otherwise transfer your rights to the SaaS Products as granted to you under these Terms or make the SaaS Products available to a third party without our prior written consent.
(II) RESTRICTIONS ON USE
You may not use, copy or install the SaaS Products on any system, or permit the use, copying, or installation of the SaaS Product on more than one Atlassian product(s). If you hold multiple, validly licensed copies, you may not use, copy, or install the SaaS Products on any system with more users than the number permitted by the applicable license. You may not:
- decompile, reverse-engineer, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide non-authorised users with access to the SaaS Products in whole or part;
- use the Saas Products for the benefit of any third party;
- incorporate any SaaS Products into a product or service you provide to a third party;
- interfere with any license key mechanism in the SaaS Products or otherwise circumvent mechanisms in the SaaS Products intended to limit your use;
- remove or obscure any proprietary notices on the SaaS Products or any permitted copies of the SaaS Products, or
- publicly disseminate information regarding the benchmarking performance of the SaaS Products; or
- otherwise attempt to derive the source code of the SaaS Products.
You may not use the SaaS Products in any manner, which is illegal or contravenes any applicable law, regulation or a third party’s intellectual property rights.
(III) RESTRICTIONS ON ALTERATION
You may not modify the SaaS Products or create any derivative work of the SaaS Products. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the SaaS Products.
(IV) RESTRICTIONS ON COPYING
You may not copy any part of the SaaS Products.
(V) RESTRICTIONS ON EXPORT
You acknowledge and agree to not export or re-export the SaaS Products outside the jurisdiction in which the SaaS Products were obtained by you without our prior written consent or as authorised by applicable laws and regulations. You shall be solely responsible for determining the existence of applicable law and compliance with relevant laws as regards to the export of the SaaS Products from the country of original purchase. We are not liable for your use of the SaaS Products in your jurisdiction or as specified under these Terms. You are solely responsible for complying with applicable laws and obtaining any needed authorisation for export. You agree to not export the SaaS Product(s) from any country where there are applicable legal restrictions on such export. We reserve all our rights not expressly granted to you under these Terms.
6. MAINTENANCE SERVICES
We shall provide you with updates, add-on components, internet-based components, and/or enhancements made generally available from time to time, and online technical support for the purpose of addressing any technical issues you may have in relation to the SaaS Products (the “Maintenance Services”).
The Maintenance Services shall be provided to you with reasonable skill and care for the duration of your Subscription License and for the duration of the Free License including any applicable renewal periods thereof.
7. SUPPORT SERVICES
We shall provide you with support services, which shall include but not be limited to bug fixes and patches (“Support Services”) for the duration of your Subscription License and for the duration of the Free License including any applicable renewal periods thereof. Our business hours are from 09h00am to 17h00 pm AEST, Monday to Friday. We try to answer all requests within 8 business hours, excluding national holidays. We are constantly monitoring our support channels to respect the high priority of any emerging critical issues.
You can request the Support Services through one of the following channels:
- by submitting a ticket on our service desk system or via [our support page](/contact/)
- via voice/video/screensharing connection (e.g. Skype or Zoom.us); or
- on Atlassian Marketplace’s Community Forum. You acknowledge that requests made via the Atlassian Community Forum are monitored by our support team and are answered on a best efforts basis.
The use of the Support Services is governed by our Service Level Agreement.
8. INTELLECTUAL PROPERTY RIGHTS
Nothing in these Terms shall operate to assign or transfer any intellectual property rights (“Intellectual Property Rights”) from us to you or vice versa. Intellectual Property Rights shall mean any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions, patents, source code, software, trademarks and designs (whether registered or not), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
Quirk Consulting shall retain all right, title and interest in and to the SaaS Products, as well as all Intellectual Property Rights not expressly granted by us under these Terms.
The SaaS Products shall be offered to you either on a subscription basis or for free. You agree to pay all applicable fees on their due date and in a manner directed at the time of subscribing for the SaaS Products. Should you fail to pay the applicable fees, this will result in the immediate termination of the licenses granted to you by us under these Terms.
We warrant that Quirk Consulting has the legal right and authority to enter into these Terms and to perform its obligations under these Terms.
We further provide you with the following warranties:
- the SaaS Products as provided will conform in all material respects with the SaaS Product’s documentation and specifications;
- the SaaS Products will be supplied free from defects and will remain free from defects for the duration of your Subscription License and for the duration of the Free License including any applicable renewal periods thereof;
- the SaaS Products will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs;
- the SaaS Products shall incorporate security features reflecting the requirements of good industry practice;
- the SaaS Products, when used by you in accordance with these Terms, will not breach any laws, statutes or regulations as applicable; and
- when you use the SaaS Products in accordance with these Terms, Quirk Consulting will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law;
You acknowledge and warrant to us that you have the legal right and authority to enter into these Terms and to perform your obligations under these Terms.
All of the Parties’ warranties and representations in respect of the subject matter of these Terms are expressly set out in these Terms. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms will be implied into these Terms or any related contract.
11. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
You acknowledge that:
- generally, software is never wholly free from defects, errors and bugs; and therefore subject to the other provisions of these Terms, we give no warranty or representation that the SaaS Products will be wholly free from defects, errors and bugs;
- generally software is never entirely free from security vulnerabilities; and therefore subject to the other provisions of these Terms, we give no warranty or representation that the SaaS Products will be entirely secure;
- the SaaS Products are only designed to be compatible with Atlassian software applications, in particular Jira; and we do not warrant or represent that the SaaS Products will be compatible with any other software; and
- the SaaS Products may use third party hosting services which may be provided to you without any warranties. As such, Quirk Consulting cannot ensure that these third party hosting services are provided to you free of defect or without interruption.
12. PRIVACY AND DATA PROTECTION
We assume no responsibility for the deletion of data, loss of data, the corruption of data or the failure to store data. Neither do we have any obligation to monitor the use of the data transmitted or stored through the SaaS Products. We reserve the right, consistent with data privacy and other user data protection requirements applicable to the jurisdiction where data is stored, and if mandated by applicable law, regulation, legal process, or governmental order, disclose user data or other information, but only to the extent required to satisfy those laws, regulations, or orders. Unless prohibited by law or other order, we will provide reasonable notice of any such required or requested disclosure to you and reasonably cooperate to limit such disclosure to the extent allowed by law.
All data you enter into the SaaS Products shall be owned solely by you. Although personal information, usernames, passwords and prompts exchanged through the SaaS Products are protected by encryption techniques, these security measures still require your responsible behavior in protecting your data. You shall assume the entire responsibility at all times for the supervision, management, control and confidentiality of your data and assume the entire risk for the fraudulent or unauthorised use of your data. You represent and warrant that you have obtained all the necessary rights, releases, authorisations and permissions to provide your data to us, to the transfer and use of your data by Quirk Consulting. You further warrant that the transfer of your data to us does not violate any laws, third party rights, including any Intellectual Property Rights, rights of privacy, or rights of publicity, and any use, collection and disclosure of your data as authorised under these Terms is not inconsistent with the terms of any applicable privacy policies. You acknowledge and agree that Quirk Consulting are not responsible for any deletion, corruption, failure to store or loss of any your data if such deletion, corruption, failure to store or loss is due to an act or omission by you, your employee(s), contractor(s), agent(s), any authorised user or other third party.
You hereby grant Quirk Consulting with a limited license to copy, transmit, store and back-up or otherwise access your data, as applicable, solely for the following purposes:
- to supply the SaaS Products to you (including to enable you and your authorised users to access and use the SaaS Products);
- to diagnose problems with the SaaS Products;
- to enhance and otherwise modify the SaaS Products;
- for Quirk Consulting administrative, support and training purposes;
- to develop other products and services, provided we de-identify your data; and
- as reasonably required to perform Quirk Consulting obligations under these Terms.
13. LIMITATION OF LIABILITY
You agree that your use of the SaaS Products is at your own risk. To the maximum extent permitted by applicable law, in no event shall Quirk Consulting be liable to you for, or to those claiming through you for, any indirect, consequential, incidental or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, cost of substitute goods or services, loss of or corruption of data however caused and whether arising under contract or tort (including without limitation negligence). The limitations in this clause shall apply notwithstanding the failure of the essential purpose of any remedy.
In no event shall our aggregate liability to you arising out of or in connection with these Terms, from all causes of action and theories of liability (including without limitation negligence), exceed the amounts paid for the current subscription period of the Subscription-Based SaaS Products and for no more than twelve (12) months. Quirk Consulting, however, shall not be liable to you for the Free SaaS Products.
We do not limit or exclude our liability for (i) death or personal injury caused by negligence, (ii) fraudulent misrepresentation, or (iii) any other liability to the extent that such liability cannot be excluded or limited by applicable law.
In no event shall Quirk Consulting be liable for any failure of performance due to circumstance beyond our control, including but not limited to a power outage, computer virus, malware, spyware, key logger application, system failure, fire, flood, earthquake, terrorism, act of war, or extreme weather conditions.
We agree to defend, indemnify and hold you harmless, including your respective directors, officers, employees, and agents from and against any and all third party claims, damages, losses, suits, actions, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by you and arising directly or indirectly of the SaaS Product’s claimed infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right, except to the extent that the infringement or violation has been caused or contributed to you or an authorised user.
Upon becoming aware of an actual or potential breach and/or claim and/or infringement, you agree to cooperate with Quirk Consulting (at your expense) and you agree to notify us and provide us with all such assistance as may be reasonably requested to allow us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties. You must furthermore, not admit liability to any third party or settle any disputes or proceedings involving a third party without our prior written consent.
You shall indemnify, defend and hold Quirk Consulting harmless from and against any and all claims, liabilities, suits, actions and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by us, arising directly or indirectly from: (i) any information that is inaccurate, not up to date, incomplete, misleading or a misrepresentation; (ii) any breach of these Terms by you or an authorised user; (iii) any misuse of the SaaS Products by you, your employees, contractors and/or authorised users; (iv) any breach of law, regulation or license by you or an authorised user; and (v) any claim brought by a third party arising out of or in connection with your or an authorised user’s use of the SaaS Products.
We will, upon becoming aware of an actual or potential breach and/or claim and/or infringement, notify you and provide you with all such assistance as you may reasonably request allow you the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties, and we will not admit liability to any third party in or settle any disputes or proceedings involving a third party without your prior written consent.
The obligations under this clause will survive termination of these Terms.
These Terms may terminate through (i) the expiration of the Subscription license, or (ii) the expiry of the Evaluation Period, or (iii) the uninstallment of a Free License, or (iv) termination for convenience, or (iii) a termination for cause.
If we terminate these Terms for convenience where you are paying for a Subscription License, your license to the Subscription-Based SaaS Products shall automatically terminate and you shall be required to remove all components of the SaaS Products from your systems and destroy any copies.
Quirk Consulting may terminate these Terms if you materially breach it or any other agreement you have entered into with us. A material breach shall include but not be limited to your failure to timely pay our fees when they have become due and owing to us, when you significantly put our system at risk as a result of not using the designated user interface elements to access data and non- UI access as per the applicable documentation, and where you attempt to access all your data at once from our servers. As such, where it has been found that you have caused a material breach Quirk Consulting shall in their sole discretion temporarily deny you access to the SaaS Product so as to afford us with the opportunity to protect our system and our other customers.
Should we terminate these Terms for cause, we will provide you with ten (10) days’ written notice, after which period the Terms will automatically terminate. Upon termination of these Terms, you shall cease all use of the SaaS Products and you shall reasonably cooperate in: (a) removing, uninstalling or deactivating all copies of the SaaS Products; and (b) satisfying all financial obligations you may have to us.
If you terminate these Terms for convenience or if we terminate these Terms for cause, you shall not be entitled to a refund of any portion of the fees you have paid to us.
For any dispute with Quirk Consulting, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Quirk Consulting has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Quirk Consulting claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Melbourne, Victoria, unless you and Quirk Consulting agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and Quirk Consulting are each waiving the right to a trial by jury or to participate in a class action.
17. GENERAL PROVISIONS
(I) RELATIONSHIP OF THE PARTIES
The Parties are independent contractors under these Terms and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither Party intends these Terms to benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Parties and listed affiliates. These Terms are not intended to create a third-party beneficiary of any kind. You must not represent to any third party that it has any right to bind us in any manner and you will not to make any representations or warranties on behalf of us.
If a court holds that any provision of these Terms is invalid or unenforceable under applicable law, the court will modify the provision to the minimum extent necessary to make it valid and enforceable or, if it cannot be made valid and enforceable, the court will sever and delete the provision from these Terms. The change will affect neither the validity of the amended provision nor the validity of any other provision of these Terms, which will continue in full force and effect.
(III) NO WAIVER
A Party’s failure or delay in enforcing any provision of these Terms will not operate as a waiver of the right to enforce that provision or any other provision of these Terms at any time. A waiver of any provision of these Terms must be in writing, specify the provision to be waived and signed by the Party agreeing to the waiver.
(IV) FORCE MAJEURE
A Force Majeure event means any event beyond a Party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by our vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or sub-contractors. Neither Party is liable for delays or failures to perform any of its obligations under these Terms to the extent caused by a Force Majeure Event.
Any notice given under or in relation to these Terms must be in writing, signed by or on behalf of the Party giving it, and addressed to us at the contact information provided when purchasing the SaaS Products.
You may not sublicense, assign or transfer any rights under these Terms without our prior written consent. Any attempt by you to sublicense, assign or transfer any of your rights, duties or obligations under these Terms, whether directly, or indirectly by merger, acquisition or change of control, will be null and void.
(VII) GOVERNING LAW
You agree that: (i) the Service shall be deemed solely based in Victoria; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Quirk Consulting, either specific or general, in jurisdictions other than Victoria. This Agreement shall be governed by the internal substantive laws of the State of Victoria, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Melbourne, Victoria for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below. If you are a consumer, this agreement does not exclude any rights you may have under the national consumer laws of your jurisdiction.
(VIII) ENTIRE AGREEMENT
These Terms constitutes the entire understanding between you and Quirk Consulting in relation to the SaaS Products and supersedes all oral or written proposals, and all communications between the Parties relating to its subject- matter.
We reserve the right to amend these Terms at any time. Any amendment will be effective on the posting of an updated version at this page.
18. CONTACT DETAILS
Should you have any questions concerning these Terms, please contact Us.