“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.
Specific conditions for development
- The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties. The customer shall always extend, in a timely manner, the cooperation reasonably required by Marvelution.
- In order to enable proper performance of the Order by Marvelution, the customer shall always provide all information reasonably required by Marvelution to Marvelution in a timely manner. The customer guarantees that the information, designs and specifications that it has provided to Marvelution is or are accurate and complete. If the information, designs or specifications provided by the customer contain inaccuracies apparent to Marvelution, Marvelution shall contact the customer to make enquiries about the matter.
- In connection with continuity, the customer shall designate a contact person or contact persons who shall act in that capacity for the duration of Marvelution’s work. The customer’s contact persons shall have the experience required, specific knowledge of the subject matter and a proper understanding of the objectives that the customer wishes to achieve.
- The customer bears the risk of selecting the goods and/or services to be provided by Marvelution.
- If, in connection with Marvelution’s services and products, the customer makes software, equipment or other resources available to Marvelution, the customer guarantees that all licenses or approvals that Marvelution may require in relation to these resources shall be obtained.
- The customer is responsible for the management, including checking the settings, and use of the products supplied and/or services provided by Marvelution, and the way in which the results of the products and services are used. The customer is also responsible for appropriately instructing users and for the use made by users.
- The customer shall itself install, organise, parameterise and tune the software and support software required on its own equipment and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and affect the interoperability that it desires.
If the parties have not agreed an acceptance test, the customer shall accept the Marvelution tailor made product in the state that it is in when delivered (‘as is, where is’), therefore with all visible and invisible errors and defects. In the aforementioned case, the software shall be deemed to have been accepted by the customer upon delivery or, if installation by a supplier has been agreed in writing, upon completion of installation.
- Marvelution shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by Marvelution or agreed between the parties shall always apply as target dates, shall not bind Marvelution and shall always be indicative.
- If a term is likely to be exceeded, Marvelution and customer shall consult with each other about the consequences of the term being exceeded in relation to further planning.
- In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, Marvelution shall only be in default as a result of a period of time being exceeded after the customer has declared Marvelution to be in default in writing and a reasonable term that the customer granted to Marvelution to remedy the breach 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.
- If it has been agreed that the work under the contract is to be performed in phases, Marvelution shall be entitled to postpone the start of a phase’s work until the customer has approved the results of the preceding phase in writing.
- Marvelution shall not be bound by a date or delivery date or term or delivery period, whether or not final, if the parties have agreed an amendment to the content or scope of the contract (additional work, a change of specifications and so on) or a change in approach with respect to performance of the contract, or if the customer fails to fulfil its obligations arising from the contract or fails to do so on time or in full. The need for or occurrence of additional work during performance of the contract shall never constitute a reason for the customer to give notice of termination or to rescind (‘ontbinden’) the contract.
The transfer of an intellectual property right included in the Marvelution tailor made product may only be undertaken expressly and in writing. If the parties agree in writing that an intellectual property right with respect to Marvelution tailor made products shall transfer to the customer, this shall be without prejudice to Marvelution’s right or option to use and/or operate, either for itself or for third parties and without any restriction, the parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like on which the developments referred to are based for other purposes. The transfer of an intellectual property right shall likewise be without prejudice to Marvelution’s right to complete developments, either for itself or for a third party, that are similar to or derived from developments that were or are being completed for the customer.
Specific conditions for support and maintenance
Scope of service
- These terms and conditions apply to updates, supplements, add-on components, or services that Marvelution may provide to Customer or make available to Customer after the date the Customer obtains its initial copy of the software, unless Marvelution provides additional terms.
- If the Marvelution services include the provision of support to users and/or administrators of the software, Marvelution shall provide, by means stipulated in the Order, advice on the use and functioning of the software specified in the contract. Marvelution may set conditions with respect to the qualifications and the number of persons eligible for support. Requests for support shall be properly substantiated.
- Support services provided by Marvelution may be subject to additional terms, including the payment of additional fees, as stipulated in the Order.
Specific conditions for hosting
Scope of service
- Subject to these terms and conditions, Marvelution grants the customer a nonexclusive right to access and use the hosted services as specified in the Order during the applicable Subscription Term in accordance with these terms and conditions, the customer’s applicable Scope of Use and the Documentation. If Marvelution offers client software (e.g., a desktop or mobile application) for any Hosted Service, the customer may use such software solely with the hosted service, subject to these terms and conditions. The customer acknowledges that Marvelution’s hosted services are online, subscription based products and that Marvelution may make changes to the hosted services from time to time. Except as otherwise specified in the Order, all subscriptions will automatically renew for periods equal to the customer’s initial Subscription Term (and the customer will be charged at the then current rates) unless the customer cancels the customer’s subscription through the customer’s account. If the customer cancels, the customer’s subscription will terminate at the end of then current billing cycle, but the customer will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- Marvelution implements security procedures to help protect the customer’s data from security attacks. However, the customer understands that use of the hosted services necessarily involves transmission of the customer’s data over networks that are not owned, operated or controlled by Marvelution, and Marvelution is not responsible for any of the customer’s data lost, altered, intercepted or stored across such networks. Marvelution cannot guarantee that Marvelution’s security procedures will be error free, that transmissions of the customer’s data will always be secure or that unauthorized third parties will never be able to defeat Marvelution’s security measures or those of Marvelution’s third party service providers.
- The customer will defend, indemnify and hold harmless Marvelution from and against any loss, cost, liability or damage, including attorneys’ fees, for which Marvelution becomes liable arising from or relating to any claim relating to the customer’s data, including but not limited to any claim brought by a third party alleging that the customer’s data, or the customer’s use of the hosted services in breach of these terms and conditions, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to the customer’s receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for the customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Marvelution at the customer’s expense.
- Marvelution has no obligation to monitor any content uploaded to the hosted services. Nonetheless, if Marvelution deems such action necessary based on the customer’s violation of these terms and conditions or in response to takedown requests that Marvelution receives, Marvelution may (i) remove the customer’s data from the Hosted Services or (ii) suspend the customer’s access to the hosted services. Marvelution may suspend the customer’s access immediately without notice. The customer will continue to be charged for the hosted service during any suspension period. Marvelution have no liability to the customer for removing or deleting the customer’s data from or suspending the customer’s access to any hosted services as described in this section.
- Marvelution may temporarily put all or part of the hosting service out of operation for preventive, corrective or adaptive maintenance. Marvelution shall not allow the period during which the service is out of operation to last longer than necessary and shall ensure if possible that this period occurs outside office hours, and, according to circumstances, have this period commence following consultation with the customer.