Atlassian Tier 2 Channel Partner Agreement
This Atlassian Tier 2 Channel Partner Agreement (the “Agreement”) is made by and between Atlassian Pty Ltd (“Atlassian”), an Australian corporation (ABN 53 102 443 916), and the applicable channel partner (“Channel Partner”). Individually, either Channel Partner or Atlassian may be referred to as a “Party” and, together, Atlassian and Channel Partner shall be referred to as the “Parties”. This Agreement does not have to be signed in order to be binding. This Agreement is binding on Channel Partner and is effective as of the earliest date on which: (1) Channel Partner clicks “I agree” (or a similar button) or (2) Channel Partner submits any Order to Carahsoft, as described below (the “Effective Date”). If you do not agree to this Agreement, you are not eligible to resell Products hereunder. If you are agreeing to this Agreement on behalf of a company, then “Channel Partner” means that company and you are binding your company to this Agreement.
Important Terms Regarding Carahsoft: This Agreement applies only to channel partners of Atlassian’s reseller, Carahsoft Technology Corp. (“Carahsoft”). Under this Agreement, Channel Partner is eligible to serve as a “Tier 2” partner of Atlassian, ordering Atlassian’s Products through Carahsoft and reselling the Products directly to End Users. Channel Partner will pay applicable fees for its Orders directly to Carahsoft, as further described in Section 5 (Orders and Delivery). However, nothing in any Order or contract between Channel Partner and Carahsoft modifies or limits Channel Partner’s obligations or Atlassian’s rights or obligations under this Agreement. If Channel Partner has a separate agreement with Atlassian (whether as a customer, Atlassian Solution Partner or reseller) that is separate from Channel Partner’s role as a Carahsoft channel partner, this Agreement will not modify such separate agreement.
In order to accomplish the above purpose, and intending to be legally bound hereby, the Parties agree as follows:
1.1 “Atlassian Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by Atlassian.
1.2 “Code of Conduct” means Atlassian’s code of conduct for representation of Atlassian and the Products, as made available by Atlassian at https://www.atlassian.com/legal/code-of-conduct and as may be modified from time to time.
1.3 “Customer Agreement” means the applicable Atlassian agreement referenced at https://www.atlassian.com/legal/gsa-customer-agreement (as the form of such agreement may be updated or amended from time to time by Atlassian at its sole discretion) or other applicable agreement entered into by and between Atlassian and the End User(s) for licensing of the Software or the receipt of the Hosted Services.
1.4 “End User” means, as applicable, either (1) the United States federal government agency to which Channel Partner resells a license to Software or subscription to Hosted Services for such government agency’s internal use only (such agency referred to as a “Government End User”) or (2) other than Government End Users, any person or an entity to which Channel Partner resells a license to Software or subscription to Hosted Services for such person’s or entity’s personal or internal use only.
1.5 “Government Agency” means a United States federal government agency with which Channel Partner has a contract for the resale of commercial items to Government End Users.
1.6 “Hosted Services” means the proprietary services provided by Atlassian to End Users through Atlassian hosted software applications, as described at https://www.atlassian.com/software#cloud-products (as amended from time to time by Atlassian), including any associated “online” or electronic documentation, in any and all manners in which Atlassian in its sole option elects to provide such services to End Users.
1.7 “Order” means the applicable order documentation between Channel Partner and Carahsoft, which specifies the identity of the End User and the specific Product licenses or subscriptions to be resold by Channel Partner to such End User.
1.8 “Products” means the Atlassian Software licenses, Hosted Services subscriptions, training, and add-ons made available by Carahsoft for resale hereunder. The Products eligible for resale will be designated by Carahsoft (as separately agreed in writing by Atlassian) and may differ between Government End Users and other End Users.
1.9 “Software” means Atlassian’s proprietary software products, as described at http://www.atlassian.com/software (as amended from time to time by Atlassian), including any associated media, printed materials, “online” or electronic documentation and Internet-based services, in any and all versions that Atlassian in its sole option elects to make available hereunder for resale, unless such subsequent version(s) are governed by a different written agreement between the Parties.
1.10 “Territory” means the territory in which Channel Partner may resell Products, which, unless otherwise specified by Atlassian in writing, is limited to the United States of America.
2. CHANNEL PARTNER RIGHTS; CERTAIN RESTRICTIONS
2.1 Appointment. Subject to all of the terms and conditions of this Agreement, during the term of this Agreement, Atlassian hereby grants Channel Partner a limited, one-time, non-exclusive, non-transferable and non-sublicensable right, solely in the Territory, to resell licenses or subscriptions to the Products specified in the applicable Order directly to the End User identified in such Order, solely for the End User’s use and without any right of redistribution. Each End User must agree to the Customer Agreement prior to use of the Products, as further described in Section 3.2. This right to resell does not apply to any other end user or Products (including without limitation any sale to any related party, organization or affiliate, or to any subsequent, additional or renewal sale to the same party)
For the avoidance of doubt, Channel Partner may not resell licenses to the Software or subscriptions to the Hosted Services to any third party (including without limitation any of its own downstream resellers) for the purpose of further resale, redistribution, sharing or other transfer of such Software or Hosted Services. All Software hereunder is licensed and not sold, notwithstanding the use of the terms “sell” or “resell” herein. For clarity, all Software and Hosted Services are provided directly by Atlassian to End Users, and Channel Partner will not act as a sublicensor of the Software or provider of the Hosted Services. Channel Partner may not resell or access any Products hereunder except for those that it purchases directly from Carahsoft in accordance with this Agreement (e.g., Channel Partner may not resell Products purchased from another reseller). Notwithstanding anything to the contrary, entering into this Agreement does not qualify Channel Partner as an Atlassian Solution Partner or grant Channel Partner any related rights. Nor does Channel Partner have the right under this Agreement to access Atlassian’s reseller portal, webinars, events, collateral, systems, Atlassian Marks, or other related program documentation or materials, unless expressly specified in writing by Atlassian.
2.2 No Use of Products by Channel Partner. Channel Partner shall have no right to install and/or use the Products, including without limitation for internal training, demonstration, and/or End User support purposes.
2.3 Certain Restrictions. Channel Partner will not, and will not permit any third party to:
(a) market, advertise, or resell the Products through any online store, except as expressly agreed to in writing by Atlassian;
(b) advertise or market any Products without clearly indicating the name of Atlassian as the developer thereof;
(c) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive, any portion of the Products (including any source code, object code or underlying structure, ideas or algorithms thereof). For the avoidance of doubt, the prohibition on reverse engineering in this Section 2.3(c) shall not apply to the extent that applicable law prohibits or restricts reverse engineering restrictions, provided that Channel Partner notifies Atlassian in writing in advance of any such activity;
(d) use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes;
(e) except as permitted under Section 2.6 (Trademarks), publish, promote, broadcast, circulate or refer publicly to any Atlassian Trademarks;
(f) commit any act or omission the likely result of which is that Atlassian’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 Atlassian’s interests;
(g) incorporate any Products into Channel Partner’s products or services on a bundled or OEM basis;
(h) remove or alter the Customer Agreement or any copyright or other proprietary notices regarding the Products;
(i) make any representations about the Products or Atlassian which are misleading or deceptive, or likely to mislead or deceive; or
(j) engage in any activities hereunder in violation of any applicable law or regulation or outside of the scope of the rights granted in Section 2.1.
Channel Partner is solely responsible and liable for all loss or damage related to any representations or warranties it makes regarding the Products in breach of this Agreement, and the fulfilment of all obligations related to any warranties which it represents are applicable to the Products in breach of this Agreement.
2.4 Reservation of Rights and Ownership. Atlassian reserves all rights not expressly granted to Channel Partner in this Agreement. The Software and Hosted Services (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. Atlassian and its suppliers have and will retain all rights, title and interest (including all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill, and confidential and proprietary information) in and to the Software, the Hosted Services, any underlying software, and all copies, improvements, updates, modifications, and enhancements of the foregoing (including any changes which incorporate any Feedback, as defined in Section 2.5), and Channel Partner does not acquire any rights of ownership in any of the foregoing. Notwithstanding any use of terms such as “purchase”, “sale” or likewise hereunder, all Products are offered by Atlassian on a license basis only.
2.5 Feedback. Channel Partner hereby grants Atlassian a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit Feedback for any purpose, including incorporating or implementing the Feedback in the Products or Atlassian Materials. Channel Partner agrees that Atlassian may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed Channel Partner’s Confidential Information, and nothing in this Agreement (including Section 7 (Confidential Information)) limits Atlassian's right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. “Feedback” means any feedback, comments, suggestions or materials that Channel Partner may provide to Atlassian about or in connection with the Products or Atlassian Materials, including any ideas, concepts, know-how or techniques contained therein.
2.6 Trademarks. Channel Partner may not use any Atlassian Marks in advertising, marketing or otherwise unless separately permitted by Atlassian in writing. Any use of Atlassian Marks must be in the form and manner as set forth on materials provided by Atlassian, in accordance with the quality standards and usage guidelines that Atlassian specifically prescribes (including Atlassian’s Trademark Guidelines available at https://www.atlassian.com/legal/trademark, as amended from time to time by Atlassian), and only in connection with the authorized marketing, advertising, or resale of the Products in accordance with the terms of this Agreement. Channel Partner expressly agrees: (a) not to register any domain names that contain any terms that are the same or similar to any Atlassian Marks; and (b) upon expiration or termination of this Agreement for any reason, to immediately cease all use of the Atlassian Marks. Atlassian reserves the right to review Channel Partner’s use of any Atlassian Marks and require Channel Partner to cease any use Atlassian identifies as problematic. Nothing contained herein shall grant to Channel Partner any ownership right in the Atlassian Marks. At no time during or after the term of this Agreement shall Channel Partner challenge or assist others to challenge Atlassian’s rights in the Atlassian Marks or the registration thereof or attempt to register any trademarks confusingly similar to the Atlassian Marks. All use of and goodwill associated with the Atlassian Marks shall inure to the sole benefit of Atlassian. Channel Partner shall not remove any trademarks or other proprietary notices incorporated in, marked on, or fixed to the Products. Channel Partner acknowledges that its representation of the Products in a professional and positive manner, consistent with the materials provided by Atlassian, is essential to Atlassian’s goodwill in the Products, and agrees that its failure to do so shall be a material breach of this Agreement. Channel Partner acknowledges that any unauthorized use of the Atlassian Marks shall constitute infringement of the Atlassian Marks and a material breach of this Agreement.
2.7 Non-Exclusive. The rights granted to Channel Partner hereunder are non-exclusive and nothing under this Agreement shall be deemed to prohibit Atlassian from entering into any reseller, end-user license, services or other agreement with any party anywhere in the world either during or after the term of this Agreement.
3. CHANNEL PARTNER’S OBLIGATIONS
3.1 Representations. Channel Partner shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Products which are in addition to or inconsistent with those set forth in the product descriptions or promotional materials delivered by Atlassian to Channel Partner hereunder. In no event shall Channel Partner make any representation, warranty or guarantee by or on behalf of Atlassian.
3.2 Customer Agreements and Warranties; Responsibilities. Channel Partner shall be responsible for ensuring each End User has entered into the Customer Agreement on its own behalf, without any modifications and in a manner which is legally binding upon the End User. This may require Channel Partner to (a) notify each End User that the Products are subject to the Customer Agreement and that by placing an order with Channel Partner the End User agrees to the Customer Agreement, (b) include either a copy of or link to the Customer Agreement in each quotation and order form Channel Partner issues to the End User, and (c) obtain from each end user written confirmation of acceptance of the Customer Agreement prior to the earlier to occur of acceptance of the order by Channel Partner or delivery of the Products. Upon written request by Atlassian, Channel Partner will promptly deliver to Atlassian evidence of such End User’s executed Customer Agreement.
Channel Partner agrees to immediately notify Atlassian of any known or suspected breach of a Customer Agreement or other unauthorized use of the Products and to assist Atlassian in the enforcement of the terms of each Customer Agreement. Without limiting the foregoing, all warranties made by Atlassian with respect to the Products are made directly by Atlassian to the End User in accordance with the Customer Agreement, and Channel Partner is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its activities hereunder, including providing unauthorized representations or warranties to End Users (e.g., with respect to future functionality of the Products), all refunds to End Users other than as set forth in Section 5.4, or otherwise breaching any term, representation or warranty of this Agreement. Channel Partner will be responsible for, and indemnify Atlassian against, all claims, damages, settlements, expenses and attorneys' fees incurred by Atlassian with respect to such activities. Channel Partner will defend, indemnify and hold harmless Atlassian from and against any loss, cost, liability or damage, including attorneys’ fees, for which Atlassian becomes liable arising from or relating to: (a) any breach by Channel Partner of any term of this Agreement; (b) the issuance by Channel Partner of any warranty or representation not authorized in writing by Atlassian; (c) any claim or dispute arising from Channel Partner’s relationship with Carahsoft; and (d) any other breach or omission by Channel Partner in connection with the marketing or distribution of the Products under this Agreement.
3.3 Code of Conduct. Channel Partner shall represent Atlassian and its Products in a positive and professional manner at all times. Channel Partner shall adhere to the Code of Conduct along with any other rules and guidelines identified by Atlassian related to registration, approval or participation as a “Tier 2” channel partner. In case of a violation of this Agreement, including but not limited to the Code of Conduct, Atlassian may suspend Channel Partner or terminate this Agreement.
3.4 Business Practices. Channel Partner agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Atlassian or its Products and agrees to comply with all applicable federal, state and local laws and regulations (including data protection, privacy and import and export compliance laws and regulations) in connection with its performance under this Agreement.
3.5 Channel Partner as Prime Contractor. For each sale of Products to a Government End User, Channel Partner will (i) identify to Atlassian whether Channel Partner or Carahsoft is serving as the prime contractor (i.e. the party with a direct contractual agreement with the relevant Government Agency governing the sale), (ii) provide Atlassian with supporting information regarding such transaction, including the name of the contracting agency, the applicable prime contract number, and a copy of the executed modification described in Section 3.5(a) below, and (iii) identify and make available to Atlassian Channel Partner’s contract administrator (or other relevant personnel) with knowledge of the transaction. The terms in (a)-(c) below apply to any such sale where Channel Partner is serving as the prime contactor. For clarity, nothing in this Section 3.5 limits Channel Partner’s obligations in Section 3.2 or the other provisions of this Agreement, which apply whether or not Channel Partner is serving as the prime contractor for a given sale.
(a) Contract Obligations. Channel Partner will promptly deliver to Atlassian a copy of the modification to its contract with each Government Agency through which Products are resold duly demonstrating that the Customer Agreement has been incorporated therein, and agrees that Government End Users will not receive Software license keys or Hosted Services user identifications or passwords until Atlassian has received a copy of all such modifications.
(b) Updates. Atlassian may update the Customer Agreement and related policies for Government End Users in its sole discretion, and Channel Partner agrees to promptly update its contract(s) with Government Agency(s) with any changes to the Customer Agreement and any such policies. Channel Partner agrees to promptly update Product information with Government Agencies, including, but not limited to (a) deleted Products, (b) Product additions, (c) Product pricing changes, (d) Product descriptions, (e) Product SKUs, and (f) any other amendments related to the Products. For purposes of this Section 3.5, "promptly" means that Channel Partner shall submit a modification to the Government Agency(s) within five (5) business days of receipt of a request to amend the Product information and/or policies related to the Products on its contract(s) with Government Agency(s).
(c) Contract Facilitation. Channel Partner agrees to facilitate negotiations between Atlassian and the Government Agency(s) with respect to Atlassian’s policies, and terms and conditions.
4. ATLASSIAN’S RIGHTS AND RESPONSIBILITIES
4.1 End User Support. Atlassian will provide support to End Users in accordance with the maintenance and support resources displayed at https://support.atlassian.com/ (as amended from time to time by Atlassian). Channel Partner will not provide support for the Products to End Users unless separately agreed in writing with Atlassian.
4.2 Channel Partner Support. Atlassian may, at its sole discretion, provide to Channel Partner technical information, current maintenance documentation, and assistance related to the Products.
5. ORDERS AND DELIVERY
5.1 Relationship with Carahsoft. Channel Partner will place its Orders directly to Carahsoft, not Atlassian. Commercial terms for any Order, including fees, currency, any late charges, taxes and payment terms, will be solely between Channel Partner and Carahsoft, and Channel Partner is solely responsible for paying all applicable amounts when due to Carahsoft. Channel Partner is also responsible for all taxes, duties or similar amounts applicable to its activities under this Agreement.
5.2 Atlassian Rights. Channel Partner acknowledges that (i) any Order it makes through Carahsoft will result in Carahsoft making its own order for the applicable Products with Atlassian, subject to Atlassian’s separate agreement with Carahsoft and (ii) Atlassian may accept or reject any orders from Carahsoft in its sole discretion.
5.3 Delivery. Without limiting Section 3.2 (Customer Agreements and Warranties; Responsibilities) or Section 3.5 (Government Agencies and End Users), Atlassian will deliver license keys to the Software and user identifications and passwords for the Hosted Services directly to End Users in accordance with its standard practices. Atlassian will not deliver any Products covered by an order to Channel Partner.
5.4 Records and Audit. Channel Partner agrees to maintain complete, clear and accurate records of all orders, customers and transactions completed with respect to this Agreement, including evidence of End Users entering into the Customer Agreement. Upon ten (10) days advance written notice, Channel Partner shall permit Atlassian or its representative to review such records and any other books and records of Channel Partner which relate to Channel Partner’s performance under the Agreement to ensure Channel Partner’s compliance with its obligations to Atlassian. Any such audit will be conducted during normal business hours and in a manner designed to cause minimal impact on Channel Partner’s ordinary business activities. Channel Partner shall maintain all records required under this Agreement for at least three (3) years following expiration or termination of the Agreement.
5.5 End User Payments and Refunds. Channel Partner shall independently determine the pricing at which it offers the Products and any related services to End Users. If an End User who has purchased Products through Channel Partner approaches Atlassian in order to make a payment, Atlassian may direct such End User to pay Channel Partner. If an End User exercises its right under its Customer Agreement to return a Product, Channel Partner will promptly notify Atlassian and fully cooperate with Atlassian’s determinations regarding issuance and payment of any refund. Atlassian may, in its sole discretion, (a) issue the appropriate refund to the End User in lieu of a refund to Channel Partner or Carahsoft or (b) issue the refund to Carahsoft or Channel Partner, in which case Channel Partner will ensure that any refund amount it receives is promptly passed on to the End User. Other than the foregoing, Atlassian will not issue any refunds to Channel Partner under this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 General. Each Party represents and warrants that it has the legal power and authority to enter into and perform its obligations under this Agreement.
6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED “AS IS”. NONE OF ATLASSIAN OR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. END USERS MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE PRODUCTS BY ATLASSIAN TO THE END USER.
7. CONFIDENTIAL INFORMATION
7.1 Confidential Information. All information disclosed pursuant to this Agreement which is (i) disclosed by a Party in writing and is marked as confidential at the time of disclosure, or which is (ii) disclosed by a Party in any other manner and is identified as confidential at the time of disclosure and is also summarized and designated as confidential in a writing delivered to the receiving Party within thirty (30) days of disclosure (collectively, “Confidential Information”), shall be maintained in confidence by the receiving Party and shall not be divulged by the receiving Party to any third party. Confidential Information of Atlassian will also include the Hosted Services (including all underlying software), Software, Atlassian Materials, any non-public documentation provided by Atlassian and any new product information regarding the Hosted Services or Software, in each case whether or not marked or identified as confidential. Additionally, the receiving Party shall not use such Confidential Information for any purpose other than for the exercise of its rights or fulfilment of its obligations under this Agreement. Access to the disclosing Party’s Confidential Information is limited to employees and agents of the receiving Party who have a legitimate “need to know” the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement.
7.2 Exceptions. The foregoing restrictions on disclosure shall not apply to information which the recipient can prove is (i) now, or later becomes, through no act or failure to act on the part of the receiving Party, generally known or available to the public; (ii) known by the receiving Party at the time of disclosure as evidenced by its records; (iii) furnished to the receiving Party by a third party, as a matter of right and without restriction on disclosure; (iv) independently developed by the receiving Party without any breach of this Agreement or use or reference to Confidential Information of the disclosing Party; or (v) the subject of a written permission to disclose provided by the disclosing Party. If any such Confidential Information is required to be disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof in the jurisdiction in which the Confidential Information is required to be disclosed, the receiving Party may disclose such Confidential Information solely as necessary to comply with such order, provided that the receiving Party shall first have given notice thereof to the disclosing Party and will make a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purpose for which the order was issued.
8. TERM AND TERMINATION
8.1 Termination. This Agreement is effective as of the Effective Date and shall remain in effect until terminated as set forth herein. Atlassian may terminate this Agreement if Channel Partner materially breaches any provision in this Agreement and fails to cure such breach within five (5) days after written notice of such breach. In addition, either Party may terminate this Agreement for any reason or no reason upon thirty (30) days’ written notice to the other Party. This Agreement will automatically terminate if Atlassian’s applicable reseller agreement with Carahsoft terminates or expires. Atlassian may also terminate this Agreement immediately upon notice to Channel Partner if (a) Atlassian ceases its Tier 2 channel partner program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for Atlassian or otherwise harm Atlassian or its end users. Except where an exclusive remedy may be specified, termination is not an exclusive remedy, and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
8.2 Consequences of Termination. Upon termination of this Agreement, Channel Partner shall (i) cease to be an authorized reseller of Atlassian products and may make no further Orders, (ii) immediately cease all advertising, marketing and other resale activities with respect to the Products, and (iii) cease use of and destroy any and all copies of the Software provided to Channel Partner under this Agreement. The Parties agree to continue cooperating with each other and to carry out an orderly termination of their relations and to return to the other Party or destroy (at such other Party’s option) any Confidential Information of such other Party in such Party’s possession or control. Any End User licenses granted prior to the termination of the Agreement shall survive in accordance with the terms of the applicable Customer Agreement, provided that in no event may such licenses be extended or renewed without the prior written consent of Atlassian. The Parties agree that, to the extent an End User desires to purchase Products (including renewals and increasing user tiers) directly from Atlassian following termination of the Agreement, Atlassian may direct the End User to pay Atlassian directly, and Channel Partner will fully cooperate with Atlassian in connection therewith. In the event of termination by either Party, neither Party shall be liable to the other, solely because of such termination, for consequential or incidental damages, including loss of profits or goodwill.
8.3 Survival. Sections 1 (Definitions), 2.3 (Certain Restrictions), 2.4 (Reservation of Rights and Ownership), 2.5 (Feedback), 2.6 (Trademarks), 3.2 (Customer Agreements and Warranties; Responsibilities), 5.1 (Relationship with Carahsoft), 5.4 (Records and Audit), and 5.5 (End User Payment and Refunds), 6.2 (Disclaimer of Warranties), 7 (Confidential Information), 8 (Term and Termination), 9 (Limitation of Liability), and 11 (General Provisions) will survive any termination of this Agreement.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY LAW: (A) NEITHER ATLASSIAN NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) ATLASSIAN’S ENTIRE LIABILITY TO CHANNEL PARTNER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY ATLASSIAN IN RELATION TO THE APPLICABLE PRODUCTS ORDERED BY CHANNEL PARTNER THROUGH CARAHSOFT THAT ARE THE SUBJECT OF THE CLAIM.
EACH PARTY ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE OTHER PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CHANNEL PARTNER AGREES THAT ATLASSIAN’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES OF AN END USER FOR BREACH OF WARRANTY SET FORTH IN SUCH END USER’S Customer Agreement. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. CHANGES TO AGREEMENT
From time to time, Atlassian may modify this Agreement, with changes effective on posting. The version of this Agreement in place at the time Channel Partner submits an Order to Carahsoft is the version that will govern such Order. Channel Partner is responsible for bookmarking this Agreement and reading it periodically.
11. GENERAL PROVISIONS
11.1 Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and Channel Partner agrees to comply with all applicable export and import laws and regulations in Channel Partner’s use and resale of the Products. Channel Partner will not (and will not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Channel Partner represents and warrants that Channel Partner is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
11.2 Compliance with Anti-Corruption Laws. Channel Partner will conduct all of its activities hereunder in compliance with the U.S. Foreign Corrupt Practices Act and the substantive provisions of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions dated 21 November 1997, as well as any amendments thereto and any other similar applicable laws or regulations (collectively, “Anti-Corruption Laws”). In connection with its activities hereunder, Channel Partner will not make or provide any payments or gifts or any offers or promises of any kind, directly or indirectly, to any official of any government, any official of any agency or instrumentality of any government or to any political party or to any candidate for political office that are prohibited by any Anti-Corruption Laws. Channel Partner will ensure that its employees, officers, directors, contractors and agents are aware of and comply with the foregoing requirements.
11.3 Applicability of Federal Regulations. Channel Partner acknowledges that with respect to sales to Government End Users, the Products are “commercial items” as that term is defined at FAR 2.101. For sales to Government End Users, Atlassian provides the Products, including any related documentation, technical data, and/or professional services, in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (“DoD”), the Government End User acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in the applicable Customer Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government End User acquires, in accordance with DFARS 227.7202‐3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in the applicable Customer Agreement. In addition, DFARS 252.227‐7015 (Technical Data – Commercial Items) applies to technical data acquired by the DoD agencies. Any Government End Users shall obtain only those rights in technical data and software customarily provided to the public as set forth in the applicable Customer Agreement. If any Government End User has a need for rights not described in this Section 11.3, it must negotiate with Atlassian directly to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in the applicable Customer Agreement to be effective. In no event shall any provisions or clauses in Channel Partner’s prime contract with a Government Agency or Government End User apply to or flow-down to Atlassian if such provisions or clauses grant the U.S. Government or any third-party audit rights against Atlassian or its affiliates, or are otherwise contrary to the requirements at FAR Part 12 as applicable to a commercial off-the-shelf supplier of software.
11.4 Entire Agreement and Order of Precedence. This Agreement, including any Exhibits, referenced Atlassian policies (including the Code of Conduct) and any other documentation attached hereto or subsequently incorporated by reference, constitute the entire, final, complete and exclusive agreement between the Parties and supersedes all previous agreements or representations, oral or written, relating to the subject matter hereof. No ordering documents or other business form of Channel Partner that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. In the event of conflict or inconsistency between the terms and conditions, the following order of precedence shall apply: 1) this Agreement; 2) any Exhibits attached to or Atlassian policies referenced in this Agreement, including the Code of Conduct; and 3) any other documentation attached hereto or subsequently incorporated through written agreement of Atlassian and Channel Partner.
11.5 No Assignment. Channel Partner may not assign, transfer or delegate this Agreement or its rights or obligations hereunder without the prior written consent of Atlassian. Atlassian may assign its rights and obligations (in whole or in part) under this Agreement without consent of Channel Partner.
11.6 Amendment. Except as set forth in Section 10 (Changes to Agreement) and without limiting Atlassian’s rights to modify the Customer Agreement and Code of Conduct, this Agreement may only be amended by a later written document executed by or on behalf of both of the Parties.
11.7 Attorney’s Fees. In enforcing the terms of this Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs of suit.
11.8 Counterparts. This Agreement and any amendments hereto may be executed in separate counterparts or by fax by the Parties. Each such counterpart when so executed shall be deemed an original, but all such counterparts together shall constitute the same instrument.
11.9 Equitable Relief; No Waiver. If Channel Partner breaches this Agreement, there may not be an adequate remedy available solely at law; therefore, Atlassian may seek an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof. No failure or delay by the injured Party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
11.10 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. If the Parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The Parties shall seek to mutually appoint an arbitrator. If the Parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each Party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the Parties: Sydney (Australia), Amsterdam (Netherlands) or San Francisco, CA (USA). If the Parties are unable to agree to one of these cities, then the arbitration shall proceed in San Francisco, CA (USA). All negotiations and arbitration proceedings pursuant to this Section 11.10 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English. Notwithstanding the provisions of this Section 11.10, nothing in this Agreement shall prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
11.11 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each Party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 11.10 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each Party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party. Notwithstanding the foregoing, Atlassian may bring a claim for equitable relief in any court with proper jurisdiction. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.
11.12 Headings; Interpretation. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement. For purposes of this Agreement, “including” means “including without limitation”.
11.13 Publicity Rights. Channel Partner grants Atlassian the right to refer to the partner relationship governed by this Agreement on Atlassian’s website or other promotional material.
11.14 Notices. Any notice or report hereunder shall be in writing. All notices by Channel Partner to Atlassian shall be in writing to Atlassian Pty Ltd, c/o Atlassian, Inc., 1098 Harrison Street, San Francisco, CA, USA 94103, Attn: Legal, and shall be deemed given (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. Atlassian may provide notices or other communications to Channel Partner via the Atlassian website, any Channel Partner email or physical address on file with Atlassian, or other reasonable means, including (at Atlassian’s option) by providing notices or communications through Carahsoft.
11.15 Relationship of the Parties. The Parties are independent contractors. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give on Party the express or implied right, power or authority to create any duty or obligation of the other Party.
11.16 Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be deemed deleted from this Agreement and shall be replaced by a valid and enforceable provision which so far as possible achieves the same objectives as the severed provision was intended to achieve, and the remaining provisions of this Agreement shall continue in full force and effect.