“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity;
“Atlassian” means Atlassian Corporation Plc, an Australian based entity offering the Atlassian Marketplace;
“Atlassian Marketplace” means the marketplace operated by Atlassian on which software development and collaboration tools are offered which Marketplace can be approached via https://marketplace.atlassian.com;
“Atlassian Website” means websites hosted by Atlassian, such as www.atlassian.com and marketplace.atlassian.com;
“Authorized User” has the meaning as stipulated in article 4.3;
“customer” means the natural or legal person who is purchasing products and/or services of Marvelution, whether or not via the Atlassian Marketplace or directly via Marvelution;
“Documentation” means official materials provided by Marvelution that describe Marvelution products and services;
“Marvelution” means Marvelution B.V., a the Netherlands based entity offering (i) Marvelution products via Atlassian, (ii) Marvelution tailor made products and (iii) Marvelution services;
“Marvelution products via Atlassian” means add-ons and plugins developed by Marvelution, which can be obtained via the Atlassian Marketplace;
“Marvelution tailor made products” means software products developed by Marvelution according to the specific requests of the customer;
“Marvelution products” means both the Marvelution products via Atlassian and the Marvelution tailor made products;
“Marvelution services” means services such as support and hosting to be rendered by Marvelution;
“Marvelution products and services” means both Marvelution products and Marvelution services;
“Marvelution Website” means websites hosted by Marvelution, such as www.marvelution.nl, www.marvelution.com and www.marvelution.org;
“License Term” means the term during which the Marvelution products will be available, which period will be 1 (one) year, unless stated otherwise in the Order;
“Order” has the meaning as stipulated in article 3;
“Scope of Use” means the restrictions and billable units of the Marvelution products;
“Subscription Term” means the period as specified in the Order during which the customer has purchased hosting services.
The customer may obtain Marvelution products and services. These terms and conditions apply to all Marvelution products and services of any nature whatsoever and under whatever name provided to the customer.
To Marvelution products purchased via the Atlassian Marketplace, also the Atlassian Customer Agreement, as shown to the customer in the purchase process in the Atlassian Marketplace, applies. In case of any inconsistencies between the Atlassian Customer Agreement and these terms and conditions, these terms and conditions prevail.
Part I, the general part of these terms and conditions applies to all Marvelution products and services. Depending on the type of product or service, Part II, III and/or IV may apply in addition. Part II, specific conditions for development, apply to all Marvelution tailor made products. Part III, specific conditions for support and maintenance, apply to Marvelution services. Part IV, specific conditions for hosting, apply to Marvelution services being hosting services.
Deviations from and additions to these general terms and conditions shall only be valid if they are agreed between the parties in writing.
The applicability of the customer’s purchasing or other conditions is specifically excluded.
Any Orders via the Atlassian Marketplace are placed via Atlassian, but constitute a direct agreement with Marvelution. The Order generated in the ordering process via the Atlassian Marketplace will show the details of the Order including but not limited to the Scope of Use. Atlassian is not authorized to make any promises or commitments on Marvelution’s behalf, and Marvelution will not be bound by any obligations to the customer other than what is specified in these terms.
Any Orders directly via Marvelution will specify the authorized scope of use for the Marvelution products and services, which may include: (a) number and type of authorized users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use“).
The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases the customer make to increase or upgrade the customer’s Scope of Use.
For any Marvelution products and services, the customer acknowledges that Atlassian will not be its contracting party.
License and intellectual property
All intellectual property rights to the Marvelution products, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to the customer under the contract are held exclusively by Marvelution, its licensors or its suppliers. The customer shall have the rights of use expressly granted under the Order and these general terms and conditions. The customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the Marvelution products, or have any such indication removed or changed.
Marvelution grants the customer a nonexclusive, nonsublicenseable and nontransferable license to install and use the Marvelution products by the Authorized Users during the applicable License Term in accordance with these terms and conditions, the applicable Scope of Use as stated in the Order, and the Documentation. The specific term of a License Term may be specified in the Order.
Only the specific individuals for whom the customer paid the required fees and whom the customer designated through the applicable Marvelution product (“Authorized Users“) may access and use the Marvelution products. Some Marvelution products may allow the customer to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be the customer or the customer’s employees, representatives, consultants, contractors, agents, or other third parties who are acting for the customer’s benefit or on the customer’s behalf. The customer may also permit its customers to have limited access to certain Marvelution products as Authorized Users. The customer may increase the number of Authorized Users permitted to access its instance of the Marvelution product by placing a new Order or, in some cases, directly through the Marvelution product. In all cases, the customer must pay the applicable fee for the increased number of Authorized Users. The customer is responsible for compliance with the Order and the terms and conditions by all Authorized Users. All use of Products by the customer and its Authorized Users must be within the Scope of Use and solely for the benefit of the customer or its Affiliates.
Unless otherwise specified in the Order, for each license for Marvelution products that will be purchased, the customer may install one production instance of the Marvelution product on systems owned or operated by the customer (or the customer’s third party service providers provided that the customer remains responsible for their compliance with these terms and conditions).
Subject to these terms and conditions, for any elements of the Marvelution products provided by Marvelution in source code form, and to the extent permitted in the Documentation, the customer may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Marvelution products.
The customer may use modifications solely with respect to its own instances in support of the permitted use of the Marvelution products but the customer may not distribute the modified Marvelution product and/or modified code to any third party.
By modifying or adapting the Marvelution products the customer accepts all responsibility for the functioning of the Marvelution products. The customer also understands that in such a case Marvelution has no obligation to provide the customer with support. The customer will hold harmless Marvelution for all losses, damages and costs in the event there is any (potential) liability due to the modifications or adaptation made.
Marvelution may always take technical measures to protect the Marvelution products to which the customer is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items. The customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.
Marvelution indemnifies the customer against any claim of a third party based on the allegation that Marvelution products or other materials developed by Marvelution infringe an intellectual property right of that third party, subject to the condition that the customer immediately informs Marvelution in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to Marvelution. The customer shall provide the powers of attorney and information required to Marvelution and assist Marvelution to defend itself against such claims. This obligation to indemnity shall not apply if the alleged infringement concerns changes made or commissioned by the customer in the Marvelution products or other materials without Marvelution’s written permission. If it is irrevocably established in court that Marvelution products developed by Marvelution itself is or are infringing any intellectual property right held by a third party, or if, in the opinion of Marvelution, there is a good chance that such an infringement is occurring, Marvelution shall if possible ensure that the customer can continue to use, or use functional equivalents of, the software, websites, data files, equipment or materials supplied. Any other or further obligation to indemnify on the part of Marvelution due to infringement of a third party’s intellectual property right is excluded.
The Marvelution products that are not for free, can be purchased against upfront payment of the fixed amount as stated in the Order. As long as no successful payment has been done by the customer, the Marvelution products will not become available for the customer.
The Marvelution services may require recurring payments, as stated in the Order. If the customer fails to pay such recurring amounts due or fails to do so on time, the customer shall owe statutory interest for commercial contracts (wettelijke handelsrente) on the outstanding amount without a demand for payment or a notice of default being required. If the customer fails to pay the amount due after a demand for payment or a notice of default has been issued, Marvelution shall be entitled to refer the debt for collection, in which case the customer must pay all judicial and extrajudicial costs, and shall be entitled to suspend the rendering of any further services without incurring any liability for damages suffered by the customer as a consequence of such suspension.
Use and compatibility
The customer shall itself install and make the Marvelution products ready for use.
Marvelution does not in any way guarantee the compatibility of the Marvelution products for the intended use by the customer.
Marvelution reserves the right to update its Marvelution products via Atlassian. Within the License Term, updates can be obtained for free via the Atlassian Marketplace. The customer is not obliged to update.
Proper use of Atlassian and Marvelution Websites
The customer will refrain from using the Atlassian and Marvelution Websites to disseminate or facilitate spam (including having open SMTP relays and / or proxies, having open proxies, hosting or allowing hosting of websites recommended by unsolicited messages and providing DNS Services for such websites).
The customer must not misuse the Atlassian and Marvelution Websites by knowingly introducing viruses, Trojans, worms, bots, logic bombs or any other malicious software.
Atlassian nor Marvelution do guarantee that the Atlassian respectively the Marvelution Websites will be secure or free from bugs or viruses. It is the customer’s responsibility to ensure that it has up to date and effective anti-virus and anti-malware software on its phone, tablet, computer, server, network infrastructure or any other device through which the customer transacts with Atlassian and/or Marvelution. If the customer believes any device through which it transacts has been infected by any malicious software, the customer must notify Atlassian or as the case may be Marvelution immediately.
Marvelution cannot guarantee the compatibility of any Marvelution products with any software of the customer. Marvelution does not accept any liability as a consequence of the non-compatibility.
Marvelution does not accept any liability for damages, of whatever nature, as a consequence of the purchase or use of those Marvelution products that are available for free.
Marvelution’s total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever shall be limited to compensation for direct loss up to a maximum of the price stipulated in the Order (excluding VAT). If the Order is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year.
Marvelution’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the customer’s customers, loss arising from the use of items, materials or software of third parties prescribed by the customer to Marvelution and loss arising from the engagement of suppliers prescribed by the customer to Marvelution is excluded. Marvelution’s liability for corruption, destruction or loss of data or documents is likewise excluded.
The exclusions and limitations referred to in this article shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of Marvelution’s management.
Unless performance by Marvelution is permanently impossible, Marvelution shall only be liable due to an attributable failure in the performance of a contract if the customer declares Marvelution to be in default in writing without delay and grants Marvelution a reasonable term to remedy the breach, and Marvelution culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give Marvelution the opportunity to respond adequately.
For any right to compensation, the customer must always report the loss to Marvelution in writing as soon as possible after the loss has occurred. Each claim for compensation against Marvelution shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless the customer has instituted a legal action for damages prior to the expiry of this period.
The customer indemnifies Marvelution against any and all claims of third parties due to product liability as a result of a defect in a product or system that the customer supplied to a third party and that consisted in part of software or other materials supplied by Marvelution.
The provisions of this article and all other limitations and exclusions of liability referred to in these general terms and conditions shall also apply for the benefit of all natural persons and legal entities that Marvelution engages in the performance of the contract.
Privacy and data processing
The customer acknowledges that Atlassian may process and study its data as collected by Atlassian in relation to the customer’s visit and use of the Atlassian Website.
The customer acknowledges that Marvelution may process and study its data as collected by Marvelution in relation to the customer’s visit and use of the Marvelution Website. Marvelution will obey the applicable Dutch privacy laws and regulations.
The customer is fully responsible for the data that it processes in the context of using a product or service of Marvelution. The customer guarantees vis-à-vis Marvelution that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party. The customer indemnifies Marvelution against any claim of a third party instituted for whatever reason in connection with this data or the performance of the contract.
The customer and Marvelution must ensure that all information received from the other party that the receiving party knows or should reasonably know is confidential, is kept secret. This duty of confidentiality shall not apply to Marvelution if and insofar as Marvelution is required to provide the information concerned to a third party in accordance with a court decision or a statutory requirement, or if and insofar as doing so is necessary for the proper performance of the contract by Marvelution. The party that receives the confidential information may only use it for the purpose for which it was provided. Information shall in any case be deemed to be confidential if it has been qualified as such by one of the parties.
The customer acknowledges that software originating from Marvelution is always confidential in nature and that this software contains trade secrets of Marvelution and its suppliers or the producer of the software.
Marvelution services will be rendered during the term of specified in the Order. Unless otherwise stated in the Order, the term of the Marvelution services will be 1 (one) year with tacit renewal for another year as per the end of a calendar year unless a party gives written notice of termination 3 (three) months before the renewal date.
Each party shall only be authorised to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. The customer’s payment obligations and all obligations of the customer or a third party engaged by the customer to cooperate and/or provide information apply in all cases as essential obligations under the contract.
If, at the time of rescission, the customer has already received Marvelution products or services in the performance of the contract, these products or services and the associated payment obligations shall not be undone unless the customer proves that Marvelution is in default with respect to the essential part of such products or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by Marvelution prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.
Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved.
Article headings and the index of these terms and conditions shall neither form part of, nor affect the interpretation of these terms.
Failure by the parties at any time to enforce any term of these terms and conditions shall not be construed as a waiver by the parties of such term. No waiver by the parties of any breach hereof or any order hereunder shall be construed to be a waiver of any other or subsequent breach.
The effectiveness of these terms and conditions shall not be impaired if any provision of these terms should be completely or partially invalid. In this case, the parties shall agree on a replacement provision that is valid and enforceable and that meets as close as possible the original economical intention of the invalid provision.
Marvelution reserves the right to amend these terms and conditions. The customer hereby accepts the amended terms and conditions beforehand. Marvelution will inform the customer about amended terms and conditions via the email address of the customer known by Marvelution. The currently applicable terms and conditions can always be reviewed via https://www.marvelution.com/legal/terms/.
Applicable law and competent court
The contractual relation between Marvelution and the customer shall be governed by the laws of the Netherlands. Disputes shall be subject to the court of competence in Amsterdam.