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This is v2 of the Agreement, dated March 14th, 2022.
1. Grant of
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License
The relationship between You and Bloompeak is that of licensee/licensor.
Subject to the terms and conditions of this Agreement, Bloompeak grants You a non-exclusive and non-transferable right to use the Products, for Your business operations or personal and non-commercial purposes for a time period limited to the License Term, as specified in the Order. As per the Cloud Products licensed on a monthly basis, License Term will be renewed (and continue to renew) for a time period equal to the License Term, specified in the initial Order.
You must ensure the maximum number of authorized users accessing and using the Products is equal to the number of licenses for which a License Fee has been paid to Bloompeak. If you add authorized users during your License Term, Bloompeak may charge You for the increased number of authorized users pursuant to the then-currently applicable license fee.
You agree that, the Software shall be used on one active host product at a time, and shall not be simultaneously used on another active host product during or after the License Term. For the avoidance of doubt, Software may be used simultaneously on another "non-production" host simulation for the purposes of testing, development and/or configuration. In the event of any use contrary to this Article, Bloompeak may charge You for the increased use within the meaning of this Article, pursuant to the then-currently applicable license fee.
Subject to the conditions and limitations set forth in this Agreement, You may install and use any available versions of the Software throughout the License Term, without making any payment additional to the License Fee. Upon the expiration of the License Term, subject to the conditions and limitations in this Agreement, You may continue to use (i) the Server Products; and, (ii) any available versions thereof prior to the expiration of the License Term. You agree and acknowledge that (i) DataCenter Products cease to function, and (ii) Your access to the Cloud Products will be automatically disabled; upon the expiration of the License Term.
Subject to the conditions and limitations set forth in this Agreement, You may use (i) the Software and (ii) the Cloud Products for a period of 30 (thirty) days (both referred to as the “Evaluation Period”) upon Your installation of the Software or the Cloud Products, whichever is applicable, free of charge. During the Evaluation Period, Bloompeak grants You a non-exclusive, non-transferable and non-renewable right to use the Products, for evaluation purposes only and not for any commercial use. Products will automatically be disabled upon the expiration of the Evaluation Period. Bloompeak shall not be held liable for any damages under any name whatsoever, arising from the disabling of the Products upon the expiration of the Evaluation Period.
2. Intellectual Property Rights and Trade Secrets
Bloompeak and/or its licensors retain all ownership, intellectual and industrial property rights of the Products. This Agreement is not an agreement of sale and does not transfer any title, intellectual or industrial property rights or ownership rights of the Products to You.
Bloompeak and/or its licensors own exclusively and reserve all intellectual and industrial rights, title and interest in and to the Products, including any intellectual or industrial property rights or any derivative works, including any modifications made thereto. You shall not exercise any right, title and interest in and to the Products or any related intellectual or industrial property rights, except for the limited usage rights (license) granted to You as per this Agreement. You agree and undertake not to take any action inconsistent with Bloompeak’s intellectual or industrial property rights, before or after the License Term.
3. Trade Secrets and Confidential Information
You agree that the Products and all ideas, methods, algorithms, formulas, processes and concepts used in developing or incorporated into the Products, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Products, as applicable, all derivative works based on any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Bloompeak, and, have great commercial value to Bloompeak.
You agree that the Products, including its object code and source code, whether specifically provided to You or not, is confidential. You acknowledge and agree that the Products are confidential information of Bloompeak and contains trade secrets that derive value from not being publicly known to third parties. You agree to treat the Products with confidentiality and not to allow use for any other purposes than that of this Agreement, or, disclosure to anyone other than the authorized users within the meaning of this Agreement.
4. Restrictions
You shall not, and shall not allow any third party to:
Reverse-engineer (unless required by law for interoperability), decompile or disassemble the Products, or create or recreate the source code for the Products;
Reproduce, sell, market, license, sublicense, distribute, rent, lease, assign, transmit, host, disclose, exploit or otherwise grant to any individual or legal entity any right to use the Products except to the extent expressly permitted in this Agreement;
Remove, modify, adapt, tamper with, translate, edit, alter or otherwise change the whole or part of the Products; or create derivative works of the Products; combine or merge the whole or part of the Products with or into any other software or documentation; or refer to or otherwise use the Products as part of any effort to develop software (including any routine, script, code or program) having any functional attributes, visual expressions or other features similar to those of the Products; directly or indirectly access or use any embedded software independently of the rest of the Products;
Use the Products in any way contrary to any applicable laws, including but not limited to hacking or tackling unauthorized access in the Cloud Products, and/or the terms and conditions stipulated in this Agreement;
Use in trade any Bloompeak name, trademark, logo or the like.
Except as otherwise agreed in writing by Bloomopeak, You shall only install the Software and make the Software available for use on hardware systems You own, lease or control.
You shall not modify, alter, attempt to defeat or defeat any protection mechanisms that are and/or may be designed to manage and protect the intellectual and industrial rights of Bloompeak.
5. Data Protection and Privacy
By clicking the "Buy" or similar button to enter into this Agreement, or ordering, downloading, installing, copying, accessing or using the Products and/or maintenance and support services, You agree to the Privacy Policy available at Bloompeak Atlassian Marketplace Page (“Privacy Policy”) and consent to the collection, processing, copying, backup, storage, transfer and use of the Personal Data by Bloompeak and its service providers for the purposes specified in the Privacy Policy.
You shall secure any and all privacy-related rights and permissions from any third parties concerned, including but not limited to, individuals, simple partnerships or sole proprietorships, as may be required by any applicable regulations, statutes, or laws under any applicable jurisdiction, in order to collect, process or transfer personal data, for the purposes of using the Products, and/or in connection with Bloompeak’s performance of this Agreement.
6. Disclaimer of Warranties
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BLOOMPEAK’S LIABILITY FOR DIRECT DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS OF A SUM EQUAL TO THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID UNDER THIS EULA IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. High Risk Activities
The Products and any other software provided on or through the Products is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Products or such other software could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”).
BLOOMPEAK DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY, DUTY OR CONDITION OF FITNESS FOR HIGH RISK ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTION, OR LACK OF ACTION, TAKEN TO PRESERVE ENVIRONMENT, LIFE OR PROPERTY.
9. Indemnification
You shall unconditionally indemnify, hold harmless and defend Bloompeak, and officers, directors, employees, contractors and agents of Bloompeak against any claims, liabilities and that a third party has incurred or may incur as a result of or in connection with:
Any third-party claims arising from: (i) Your use of the Products in a manner not expressly permitted by this Agreement; (ii) Bloompeak’s compliance with any technology, designs, instructions or requirements provided by You or a third party on Your behalf; (iii) any claims, costs, damages and liabilities asserted by You or Your Representatives; or, (iv) any violation by You of any applicable laws; or,
Any legal expenses and attorney fees required for Bloompeak to respond to a subpoena, court order or other official government inquiries regarding Your use of the Products.
10. Maintenance and Technical Support
Without prejudice to Article 6(Disclaimer of Warranties) or any other provision contained in this Agreement, Bloompeak will use its best efforts to offer maintenance and technical support services to You, for a time period limited to the License Term (“Maintenance Period”). You acknowledge that, the Maintenance Period shall not exceed the License Term set forth under this Agreement and that Bloompeak makes no warranties or representations of any kind in regard to any initial response time, service hours or incident resolution. For the avoidance of doubt, the Maintenance Period will be extended in the event that You duly renew this Agreement for an additional term, limited to the then-applicable license term. You agree and acknowledge that Bloompeak will not provide maintenance and technical support (including but not limited to back-up) services related to Atlassian’s cloud service infrastructure.
11. Termination
Bloompeak may immediately and unilaterally terminate this Agreement as a whole, without any prior notice, and without paying any compensation, if;
You fail to comply with the terms and conditions in this Agreement; or,
You commence a judicial or administrative proceeding under insolvency laws for the purpose of reorganization or liquidation or restructuring; or,
You suspend or threaten to suspend payment of Your debts, or are unable to timely pay Your debts, or admit inability to pay Your debts, or are deemed unable to pay Your debts.
In the event of termination of this Agreement for any reason whatsoever, You shall cease all use, and destroy or return to Bloompeak any copies of the Products, and delete any and all accounts You may have established which are accessible through the Products. Any of Your obligations under this Agreement which by their nature are intended to survive the termination of this Agreement or Your use of the Products shall continue to apply to You after the termination of this Agreement or You cease to use the Products.
12. Governing Law
All disputes arising from or related to this Agreement or its subject matter shall be governed by the laws of the Republic of Türkiye. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement shall not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. The Courts of Istanbul shall have jurisdiction over all disputes arising from or related to this Agreement or its subject matter.
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Bloompeak may identify you as a customer in its promotional materials, which may require the use of Your logo, trademark or the like. You may request from Bloompeak to stop such use by means of (i) sending an e-mail to support@bloompeak.io or (ii) sending a request via https://bloompeak.io/support at any time. You agree that it may take up to 10 (ten) days for Bloompeak to process your request.
17. General Provisions
This Agreement and the Privacy Policy, each as amended and modified from time to time at the sole discretion of Bloompeak, together constitute the entire agreement between You and Bloompeak with respect to the subject matter hereof. Bloompeak may amend, update or modify this Agreement periodically, including any referenced policies and other documents referred to in this Agreement. Any amendment, modifications or updates referred to in this Article shall have immediate effect.
The failure of Bloompeak to exercise or enforce any of its rights or provisions of this Agreement shall not constitute a waiver of such right or provision.
If any part of this Agreement is held invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permissible to maintain the intent of this Agreement, and the other parts shall remain in full force and effect.
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions. If You do not have such authority or if You do not agree with the terms and conditions of this Agreement, do not install or use the Products, and do not accept this Agreement.
You may assign this Agreement to succeeding parties in the case of a merger, acquisition or change of control, provided that; (a) Bloompeak is notified in writing within ninety (90) days of such assignment, (b) the assignee agrees to be bound by the terms and conditions contained in this Agreement and (c) upon such assignment, the assignor shall no longer use the Products. Bloompeak may at any time assign its rights and obligations under this Agreement without Your consent.
Notices to You shall be made by Bloompeak to Your e-mail address or Your account. Notices to Bloompeak shall be made by means of (i) sending a confirmed electronic mail (e-mail) to support@bloompeak.io or (ii) sending a request to https://bloompeak.io/support . All notices shall be considered as delivered to Bloompeak; (i) if emailed, at the time of confirmation in writing of receipt of the e-mail, and (ii) if couriered, at the time of confirmation of delivery by the messenger.