EUTU – Cloud App

Version: TP.08072020.02

Effective date: 24/Oct/2023

The End-User Terms of Use (“EUTU”), is a legally binding agreement between you (hereinafter referred to as the “Licensee”), an individual or a single legal entity, and TESTPOINT, granting you the right to use the Software. By purchasing the Software from Atlassian, Reseller or TESTPOINT (“Purchase”), you acknowledge and accept this EUTU, which shall be effective from the date of Software receipt. Please note that an amendment or addendum to this EUTU may accompany the Software. By installing, copying, downloading, or otherwise using the Software, you agree to be bound by the terms and conditions set forth in this EUTU. If you do not agree to these terms, you are not authorized to install, copy, download, or use the Software.

1. DEFINITIONS

  • “Accessible Code” refers to source code that is not protected and can be easily accessed.
  • “TESTPOINT” means TESTPOINT PTY LTD
  • “Application” means the ATLASSIAN application within which the Testpoint Software runs.
  • Authorized User” is an individual who has access to and utilizes the Software under a User License.
  • Embedded Software” refers to any third-party software that contains Accessible Code, Protected Code, or Media licensed by TESTPOINT from a third party and is integrated into the Software.
  • Free License” refers to a license provided by TESTPOINT where the Fees are exempted or waived.
  • “Free License” means a license for which the Fees are waived by TESTPOINT.
  • “Maintenance” means the provision by TESTPOINT to Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
  • “Media” means all images, icons, text files, pdfs or other static non-code assets contained within the Software.
  • “OEM Distribution” means distribution of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.
  • “Paid License” means a license for which Fees have not been waived by TESTPOINT.
  • “Parties” means either TESTPOINT or the Licensee or both.
  • “Protected Code” means any source code that is protected against access by the Licensee and any third party without TESTPOINT’s prior written permission and is otherwise not accessible under this EUTU.
  • “Reseller” means a third party selling and distributing TESTPOINT services and/or products which it is authorised by TESTPOINT or ATLASSIAN to do so.
  • Services” we mean our Websites, Application Programming Interfaces (APIs), applications, our content, and various third-party services that make up our Software.
  • “Software” means the TESTPOINT software entitled above that accompanies this EUTU, which may include computer software, Accessible Code and Protected Code and may include associated media, Media, printed materials, “online” or electronic documentation, Internet-based services, and Embedded Software.
  • EUTU” means our End-User Terms of Use, which includes our Privacy Policy
  • Information” means all of the different forms of data that you provide us and that we collect from you from your use of the Services, your software, and your devices.
  • “User License” means a license granted under this EUTU to the Licensee to permit an Authorised User to use the Software. The number of User Licenses granted to the Licensee is dependent on the Fees paid by the Licensee.

2. GRANT OF LICENSE

Upon acceptance of this End User Test Use (EUTU) agreement, TESTPOINT grants the Licensee the non-exclusive privilege to use the Software, subject to the conditions outlined below:

General License Terms

2.2 Scope

Unless otherwise specified in this EUTU or agreed by TESTPOINT in writing, each license granted under this EUTU is non-exclusive, non-transferable, and applicable worldwide.

2.3 Duration

In accordance with this End User Terms and Conditions (EUTU), the duration of the granted term is as follows: For a Free License, it is valid for one calendar year (365 days) from the date of subscription, unless terminated earlier. However, an Evaluation License is only operational during the Evaluation Period. For a commercial license, the term is 30 days from the date of subscription. In both cases, the service will automatically continue if the customer decides to renew the subscription for the next term.

3. FEES


The Licensee is responsible for ensuring payment of all Fees within the specified timeframe and in the manner instructed during the Software Purchase. Failure to meet the payment deadline will result in the immediate termination of the licenses granted under this EUTU.

4. RESERVATION OF RIGHTS AND OWNERSHIP

TESTPOINT reserves all rights not expressly granted to the Licensee in this EUTU. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. TESTPOINT or its relevant third parties own the title, copyright, and all other intellectual property rights in the Software and all subsequent copies of the Software. The Software is licensed, not sold and the Licensee does not acquire any rights of ownership in the Software hereunder.

You shall grant to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into our software or otherwise use any suggestions, enhancement requests, recommendations or other feedback that we receive from you or your agents.

5. SUPPORT AND MAINTENANCE

5.1 Additional Software / Services

This EUTU applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that TESTPOINT may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless TESTPOINT provides other terms along with any Supplementary Software. TESTPOINT reserves the right to discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

5.2 Support and Upgrades

Should any support services be provided by TESTPOINT to the Licensee, then Licensee may request information about such services and such services may be subject to the payment of additional Fees.

6. LICENSEE OBLIGATIONS

6.1 Positive Obligations

Licensee must at all times:

(a) ensure that only an Authorised User uses the Software and only in accordance with the terms and conditions of this EUTU,

(b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.

6.2 Negative Obligations

Licensee must not, whether through negligent act or omission, or without the prior written consent of TESTPOINT, which may be withheld at TESTPOINT’s discretion and include certain conditions:

(a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software;

(b) directly or indirectly access or use any Embedded Software independently of the rest of the Software;

(c) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code);

(d) except as otherwise permitted in this EUTU, publish; promote; broadcast; circulate or refer publicly to the TESTPOINT name; trade name; trademark; product name, service mark or logo;

(e) commit any act or omission the likely result of which is that TESTPOINT’s or any of its third party suppliers’ reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on TESTPOINT’s interests;

(f) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with TESTPOINT; or

(g) copy or embed elements of the Accessible Code contained in the Software into other software.

6.3 Protection Mechanisms

The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of TESTPOINT and its third party suppliers. Licensee must not modify or alter those features to try to defeat the Software or use rules that the license protection mechanisms are designed to enforce. Any such attempt by the Licensee will result in the immediate termination of any license granted under this EUTU.

7. NOTIFICATION

7.1 General

If the Licensee discovers it has breached any of its obligations under this EUTU the Licensee must immediately report such breach to TESTPOINT by raising a ticket.

7.2 Breach of Additional Licences

Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), TESTPOINT and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that TESTPOINT or any third party owner of Embedded Software may have against Licensee) to charge Licensee, in addition to any other Fees payable by Licensee under this EUTU, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that TESTPOINT and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.

8. INVESTIGATION OF UNAUTHORISED USE AND DISTRIBUTION

If TESTPOINT reasonably suspects the Software has been distributed to or obtained by any person or party without TESTPOINT’s prior written consent, that Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EUTU and in particular, but without limitation, its obligations under clause 6, TESTPOINT reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EUTU. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by TESTPOINT within ninety (90) calendar days of being required, it will be considered that a breach of this EUTU has occurred allowing TESTPOINT to terminate the licenses granted under this EUTU.

9. TERMINATION

9.1 Without prejudice to any other rights and in addition to any other termination rights in this EUTU, TESTPOINT may terminate with immediate effect, this EUTU if

(a) the Licensee fails to comply with the terms and conditions of this EUTU; or
(b) Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
(c) Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of Licensee; or
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over Licensee (being a company); or
(f) the holder of a qualifying floating charge over the assets of Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of Licensee or a receiver is appointed over the assets of Licensee; or
(h) a creditor or encumbrancer of Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i) Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

9.2 Immediately upon termination of a license granted under this EUTU, the Licensee must at its own cost:

(a) cease permitting access to and procure that all Authorised Users immediately cease all use of the Software; and (b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; (c) provide TESTPOINT with written certification that it has destroyed all copies of the Software including but not limited to all Accessible Code in its possession, custody or control.

10. INFRINGEMENT INDEMNIFICATION

10.1 Infringement of Software

If the Software becomes, or in the opinion of TESTPOINT may become, the subject of a claim of infringement of any third party’s intellectual property rights, TESTPOINT may, at its option and in its discretion: (a) procure for Licensee the right to use the Software free of any liability; (b) replace or modify the Software to make it non-infringing; or (c) refund any license Fees related to this Software paid by Licensee. The foregoing states the sole liability of TESTPOINT and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by TESTPOINT under this EUTU.

10.2 Licensee’s Use

Licensee will indemnify and hold harmless TESTPOINT against all costs, expenses, losses and claims made against TESTPOINT as a result of any infringement of a third party’s intellectual property rights arising from the Licensee’s or its Authorised User’s unauthorised use of the Software under this EUTU.

10.3 Third Party Products

Licensee acknowledges and agrees that if Licensee breaches this EUTU and TESTPOINT or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, TESTPOINT or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.

11. EXCLUSION OF WARRANTIES

To the maximum extent permitted by applicable law in the jurisdiction in which the Software or any Supplementary Software is supplied or Maintenance is provided, TESTPOINT and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EUTU, hereby disclaim all other warranties and conditions, whether express, implied or statutory.

12. LIMITATION OF LIABILITY

12.1 Limitation of Liability for other Losses

Notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of TESTPOINT and any of its third party suppliers under any provision of this EUTU and Licensee’s exclusive remedy hereunder shall be limited to an amount of the liability up to a maximum of the sum of the multiple of three times the amount actually paid by the Licensee for the Software.

12.2 Consequential Loss

Notwithstanding anything else in this section 12, to the maximum extent permitted by applicable law, in no event shall TESTPOINT or its third party suppliers be liable for any loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data; special; incidental; punitive; indirect; or consequential damages whatsoever arising out of or in any way related to the use of or inability to use the Software; the provision of or failure to provide Maintenance or other services; information; software; and related content through the Software or otherwise arising out of the use of the Software; or otherwise under or in connection with any provision of this EUTU, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of TESTPOINT or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if TESTPOINT or any third party supplier has been advised of the possibility of such damages.

12.3 TESTPOINT shall have no liability to the Licensee where faults arise from:

(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this licence, if the infringement would have been otherwise avoided; or
(b) misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by; or
(c) any breach of the Licensee’s obligations under this licence; or
(d) any modification not authorised by TESTPOINT resulting in a departure from the licence; or
(e) any operator error on the part of the Licensee.

13. PUBLICITY RIGHTS

Licensee grants TESTPOINT the right to include Licensee as a customer in Software promotional material, including Licensee’s logo. Licensee can deny TESTPOINT this right at any time by submitting a ticket, requesting to be excluded from Software promotional material. Requests made after purchasing may take twenty (20) calendar days to process.

14. AMENDMENT

This EUTU may not be amended except with the written agreement of TESTPOINT whose consent may be withheld in its complete discretion without any requirement to provide reasons.

15. GOVERNING LAW AND EXCLUSIONS

15.1 Applicable Law

This EUTU and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of Australia (NSW).

15.2  Exception from Jurisdiction.

Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee place of residence) prior to, during, or after commencement or prosecution of arbitration proceedings or the final decision and award of the arbitrators.

15.3 Exclusion of UN Convention

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EUTU.

16. ENTIRE AGREEMENT

16.1

This EUTU (and any addendum or amendment to this EUTU which is included with the Software) is the entire agreement between the Licensee and TESTPOINT relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EUTU.

16.2

Each party acknowledges that, in entering into this EUTU (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EUTU or not) other than as expressly set out in this EUTU or those documents.

16.3

Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in this EUTU.

16.4

Nothing in this clause shall limit or exclude any liability for fraud.

17. WAIVER

17.1

If TESTPOINT fails, at any time during the term of this EUTU, to insist upon strict performance of any of the Licensee’s obligations under this EUTU, or if TESTPOINT fails to exercise any of the rights or remedies to which it is entitled under this EUTU, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.

17.2

A waiver by TESTPOINT of any default shall not constitute a waiver of any subsequent default.

17.3

No waiver by TESTPOINT of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.

18. SEVERABILITY

18.1

If any provision of the EUTU (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and to give effect to the commercial intention of the parties.

19. NO PARTNERSHIP ETC.

Nothing in the EUTU is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

20. RULES OF INTERPRETATION

In this EUTU, the following rules apply:

20.1

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

20.2

A reference to a party includes its personal representatives, successors or permitted assigns;

20.3

A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

20.4

A reference to one gender includes a reference to the other gender.

20.5

Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

20.6

A reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.

20.7

We reserve the right, at our sole discretion, to change, modify, add, or remove portions of the Terms, at any time. Amendments or changes to these Terms won’t be effective until we post revised Terms on the Website. Unless explicitly stated otherwise, any new features that augment or enhance our software shall be subject to the Terms.

  • It is your responsibility to check the Terms periodically. Your continued use of our software following the posting of changes will mean that you accept and agree to the changes.
  • We reserve the right to do any of the following, at any time, without notice to you: 
  • to modify, suspend or terminate operation of or access to our software, or any portion of software for any reason; 
  • to modify or change software, or any portion of our software, and any applicable policies or terms; and 
  • to interrupt the operation of our Software, or any portion of Software, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

21. SURVIVAL

Clauses 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 19 and 20 shall survive any termination of this EUTU.

Related Articles