Hobly software products are proprietary software applications. Your use of Hobly software is subject to the terms and conditions described in this End User License Agreement.
Hobly End User License Agreement
This End-User License Agreement (EULA) is a legal agreement between you (either an individual or a single legal entity) who’s details are provided to Hobly upon Purchase (defined below) (Licensee) and Hobly to use the Software. This EULA applies from the date when the Licensee receives the Software from a Reseller or Hobly (Purchase). An amendment or addendum to this EULA may accompany the Software. The Licensee agrees to be bound by the terms of this EULA by installing, copying, downloading or otherwise using the Software or clicking the “I Accept/ Agree” button if Purchasing the Software on-line. If the Licensee does not agree to the terms of this EULA, the Licensee may not install, copy, download or otherwise use the Software or if acquiring the Software on-line the Licensee must click the “Cancel” button. The Licensee cannot cancel its Purchase after it has started installing, copying, downloading or otherwise using the Software or clicked the “I Accept/Agree” button if Purchasing the Software on-line.
“Accessible Code” means source code that is unprotected and accessible.
“Application” means the Atlassian application within which the Software runs.
“Authorised User” means a person who accesses and uses the Software under a User Licence.
“Embedded Software” means any third party software which may contain Accessible Code, Protected Code or Media licensed by Hobly from a third party and embedded in the Software.
“Fees” mean all fees and expenses payable by the Licensee to Hobly in acquiring the Software and as applicable any Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by Hobly.
“Maintenance” means the provision by Hobly to Licensee under separate agreement, 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 Hobly.
“Parties” means either Hobly or the Licensee or both.
“Protected Code” means any source code that is protected against access by the Licensee and any third party without Hobly’s prior written permission and is otherwise not accessible under this EULA.
“Reseller” means a third party selling and distributing Hobly services and/or products which it is authorised by Hobly to do so.
“Software” means the Hobly software that accompanies this EULA, 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.
“User License” means a license granted under this EULA 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 Licensee’s acceptance of this EULA, Hobly grants the Licensee the non-exclusive right to use the Software subject to the following:
2.1 Authorized Users
The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licences for which the necessary Fees have been paid to the Reseller or Hobly. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Hobly.
The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.
2.3 Installation and Use
Hobly may in its sole discretion provide evaluation copies of the Software for customers to assess the Software, which may not have full functionality. If the Software is only provided for evaluation purposes the rights of the Licensee are limited to this evaluation license which permits the Licensee to download, install, use and operate the Software for a limited period (“Evaluation Period”) and be accessed by a limited number of temporary users only, as determined by Hobly (“Evaluation Licence”). On the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
Each license granted by Hobly under this EULA is unless otherwise specified in this EULA or agreed by Hobly in writing; worldwide, non-exclusive and non-transferable.
Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be: perpetual for a Paid License; one calendar year (365 days) from the date of Purchase for a Free License, except that an Evaluation License will operate for the Evaluation Period only.
2.6 Permitted Computers
Except as otherwise agreed in writing by Hobly, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.
2.7 Responsibility for Non-controlled systems
If Hobly permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Uncontrolled Systems”), the Licensee will ensure the terms of this EULA are complied with by users of such Uncontrolled Systems and the Licensee indemnifies Hobly for all costs, damages and loss Hobly suffers arising from such installation or use of the Software on Uncontrolled Systems.
The Licensee must pay all Fees by their due date notified to Licensee and in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this EULA.
4. Embedded Software
The Licensee acknowledges the Software may contain Embedded Software and that in addition to the obligations of this EULA, additional obligations may apply in relation to any use of Embedded Software by the Licensee which is not in accordance with the use of the Software as permitted under the terms of this EULA. In such circumstances the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software.
Each case of such Embedded Software which can cause additional obligations to Licensee is being described under "Legal Information" section of appropriate product documentation. Licensee may request additional information from Hobly either by email or support channel. Hobly will provide such information upon request when any additional obligations may apply to Licensee.
While the Licensee is permitted to conduct performance and comparison “benchmarking” in relation to the Software as a whole against other software, the Licensee must not conduct any “benchmarking” in relation to the Software or any part thereof.
4.3 Compatibility with Open Source and Free Licenses
To the extent that the terms of any open source or free software license applicable to any portion of the Software conflict with this license, the terms of such open source or free software license shall prevail. Where required by the applicable license, you may obtain a complete machine-readable copy of the source code for such free software without charge except for the cost of media, shipping, and handling, upon written request to Hobly.
5. Reservation of Rights and Ownership
Hobly reserves all rights not expressly granted to the Licensee in this EULA. The Software and all copies thereof are protected by copyright and other intellectual property laws and treaties. Hobly 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.
6. Support and Maintenance
6.1 Additional Software / Services
This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software (“Supplementary Software”) that Hobly may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless Hobly provides other terms along with any Supplementary Software. Hobly 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.
6.2 Support and Upgrades
Any support services provided by Hobly will be substantially as described in any separate written materials provided by Hobly to the Licensee and may be subject to the payment of additional Fees.
7. Licensee Obligations
7.1 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 EULA,
(b) ensure that the Software is not used for rental, timesharing, subscription service, hosting or outsourcing.
7.2 Negative Obligations
Licensee must not, whether through negligent act or omission, or without the prior written consent of Hobly, which may be withheld at Hobly’s discretion and include certain conditions: (a) sell; sublicense; redistribute; reproduce; transmit; circulate; disseminate; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to Licensee through the Software to a person who is not an Authorised User; (b) except as otherwise permitted in this EULA, publish; promote; broadcast; circulate or refer publicly to the Hobly name; trade name; trademark; service mark or logo; (c) commit any act or omission the likely result of which is that Hobly’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 Hobly’s interests; (d) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with Hobly.
If the Licensee discovers it has breached any of its obligations under this EULA and in particular but not limited to the obligations in clause 7, the Licensee must immediately report such breach to Hobly.
8.2 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), Hobly and/or any third party owner of Embedded Software will be entitled (without prejudice to any other right or claim that Hobly 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 EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that Hobly and/or any third party owner of Embedded Software charges for the Software or Embedded Software respectively.
9. Investigation of Unauthorised Use and Distribution
If Hobly reasonably suspects the Software has been distributed to or obtained by any person or party without Hobly’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 EULA and in particular, but without limitation, its obligations under clause 7, Hobly 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 EULA. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by Hobly within ninety (90) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing Hobly to terminate the licenses granted under this EULA.
10. Permitted Fixes
Notwithstanding anything else in this EULA but subject to any amendment or addendum to this EULA supplied with the Software providing permission to access the Accessible Code and to the terms and conditions contained herein, the Licensee is permitted to modify the Accessible Code in the Software to develop bug fixes, customizations or additional features solely for their internal purposes of using the Software.
Without prejudice to any other rights and in addition to any other termination rights in this EULA, Hobly may terminate with immediate effect, this EULA if
(a) the Licensee fails to comply with the terms and conditions of this EULA; 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 other than (being a company) 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
(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; or
(j) any event occurs, or proceeding is taken, with respect to Licensee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 11.1(a) to (i) (inclusive).
Immediately upon termination of a license granted under this EULA, 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 Hobly 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.
12. Infringement Indemnification
12.1 Infringement of Software
If the Software becomes, or in the opinion of Hobly may become, the subject of a claim of infringement of any third party’s intellectual property rights, Hobly 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 Hobly and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Software or any other items provided by Hobly under this EULA.
Licensee will indemnify and hold harmless Hobly against all costs, expenses, losses and claims made against Hobly 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 EULA.
12.2 Third Party Products
Licensee acknowledges and agrees that if Licensee breaches this EULA and Hobly or any third party owner of Embedded Software suffers any loss, damage, cost or expense directly or indirectly in connection with the breach, Hobly or the relevant third party owner of the Embedded Software may bring an action directly against Licensee.
13. 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, Hobly and its third party suppliers provide the Software and any Maintenance AS IS AND WITH ALL FAULTS, and except otherwise expressly contained in the EULA, hereby disclaim all other warranties and conditions, whether express, implied or statutory.
14. Limitation of Liability
14.1 Non-excludable Warranties
The Licensee may have remedies against Hobly imposed by law or statute which can not be excluded by Hobly and its third party suppliers. To the extent the Licensee has such legal remedies against Hobly or its third party suppliers then to the fullest extent permitted by law Hobly and its third party suppliers’ liability is limited (a) at Hobly’s option, to: (i) in the case of the Software: 1) repairing or replacing the Software; or 2) the cost of such repair or replacement; and (ii) in the case of Maintenance services; 1) re supply of the Maintenance services; or 2) the cost of having the Maintenance services supplied again; or (b) if the limitation set out in 14.1(a) is not applicable then 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.
14.2 Limitation of Liability for other Losses
Subject to section 14.1, notwithstanding any damages Licensee might incur for any reason whatsoever to the maximum extent permitted by applicable law the entire liability of Hobly and any of its third party suppliers under any provision of this EULA 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.
14.3 Consequential Loss
Notwithstanding anything else in this section 14, to the maximum extent permitted by applicable law, in no event shall Hobly 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 EULA, even in the event of the fault; tort (including negligence); misrepresentation; strict liability; breach of contract; or breach of warranty of Hobly or any third party supplier, (including any such liability for the acts or omissions of its employees, agents and subcontractors); and even if Hobly or any third party supplier has been advised of the possibility of such damages.
14.4 Liability exclusions
Hobly 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 Hobly); or
(f) any breach of the Licensee’s obligations under this licence; or
(g) any modification not authorised by Hobly resulting in a departure from the licence; or
(h) any operator error on the part of the Licensee.
15. Publicity Rights
Licensee grants Hobly the right to include Licensee as a customer in Software promotional material. Licensee can deny Hobly this right at any time by submitting a written request via email to info@Hobly.com, requesting to be excluded from Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process.
This EULA may not be amended except with the written agreement of Hobly whose consent may be withheld in its complete discretion without any requirement to provide reasons.
Licensee may assign this EULA to:
(i) succeeding parties in the case of a merger, acquisition or change of control; or
(ii) if Licensee is a supplier to a government agency; provided, however, that in each case,
(a) Hobly 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 EULA and
(c) upon such assignment the assignee makes no further use of the Software licensed under this EULA. Hobly may assign its rights and obligation under this EULA without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
If the Software is acquired in Australia by the Licensee, the Licensee must comply with all applicable Australian export control laws and regulations, including without limitation, the laws and regulations administered by the Australian Department of Foreign Affairs and Trade (or any replacement department or authority).
18.2 United States
If the Software is acquired by the Licensee in the United States, the Licensee acknowledges:
(a) the Software is subject to U.S. export jurisdiction and agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments and notwithstanding the above; and
(b) the provisions of the USA Uniform Computer Information Transaction Act do not apply to this EULA.
The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. Licensee is solely responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorisation. Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export.
19. Governing Law and exclusions
19.1 Applicable Law
This EULA 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 Poland and shall be submitted to the exclusive jurisdiction of the Polish courts.
19.2 Dealing with problems or disagreements
(i) If any dispute arises in connection with this Agreement that cannot be easily resolved in the usual course of business, either party shall send a written request to the other for a meeting to discuss the dispute, the reason for the dispute and their reasoned opinion for their position. The parties agree to use their reasonable endeavours to meet promptly in good faith to resolve the dispute.
(ii) If the dispute is not resolved at any such meeting described, then the parties shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
(iii) No party may commence any court proceedings or arbitration proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute in accordance with clauses 19.2 (i) and (ii) above and either the mediation has terminated or the other party has failed to participate in the mediation, provided that this clause shall not apply if the right to issue such proceedings or any remedy which is to be sought in such proceedings would thereby be prejudiced.
19.3 Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.
20. Entire Agreement
This EULA (and any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and Hobly 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 EULA.
Each party acknowledges that, in entering into this EULA (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 EULA or not) other than as expressly set out in this EULA or those documents.
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 EULA.
Nothing in this clause shall limit or exclude any liability for fraud.
All notices given to Hobly must be given toHobly.pl and to the Licensee at the address provided by it upon Purchase of the Software. Notice will be deemed received and properly served 24 hours after an electronic communication (including email) is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an electronic communication, that such e-mail was sent to the specified e-mail address of the addressee.
If Hobly fails, at any time during the term of this EULA, to insist upon strict performance of any of the Licensee’s obligations under this EULA, or if Hobly fails to exercise any of the rights or remedies to which it is entitled under this EULA, this shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.
A waiver by Hobly of any default shall not constitute a waiver of any subsequent default.
No waiver by Hobly 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.
If any provision of the EULA (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.
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.
24. Further Assurance
Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to the EULA and the transactions contemplated by it.
25. No Partnership etc.
Nothing in the EULA 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 authorise any party to make or enter into any commitments for or on behalf of any other party.
26. Rules of Interpretation
In this EULA, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
A reference to a party includes its personal representatives, successors or permitted assigns;
The headings in this EULA are inserted for convenience only and shall not affect its construction.
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.
A reference to one gender includes a reference to the other gender.
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
A reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.
Clauses 1, 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26 and 27 shall survive any termination of this EULA.