QMetry – Test Management for Jira End User License Agreement

Test Management for Jira End User License Agreement

QMetry Suite of Products for Jira (QMetry Test Management for Jira, QMetry Open API for Jira, QMetry Voyager and QMetry Wisdom for Jira) End User License Agreement

By using the QMetry Suite of Products for Jira, QMetry Test Management for Jira, QMetry Open API for Jira, and QMetry Wisdom for Jira, (referred to herein individually as the “Add-On”), you agree to the terms of this End User License Agreement (“EULA”) between you and QMetry Inc. (“QMetry” or “we”).

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE ADD-ON. BY ACCESSING AND USING THE ADD-ON IN ANY MANNER, YOU AGREE TO EACH AND EVERY TERM AND CONDITION CONTAINED IN THIS EULA.

This EULA governs your access and use of the Add-On. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you. This EULA does not apply to QMetry products or services that do not specifically contain a link to the EULA on those respective websites. In many cases, other agreements, terms, or policies may govern those QMetry products or services, so govern yourself accordingly.

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE ADD-ON, YOU ARE ACCEPTING AND AGREEING TO EACH AND EVERY TERM AND CONDITION CONTAINED IN THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE ADD-ON AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE ADD-ON.

1. License.

Subject to the terms of this EULA, QMetry grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Add-On for a business or personal use, subject to the restrictions set forth below.

2. Restrictions.

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Add-On or make the Add-On available to any third party, (b) copy or use the Add-On for any purpose other than as permitted in Section 1, (c) use any portion of the Add-On on any device or computer other than those that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Add-On, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Add-On (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact QMetry and provide QMetry an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Add-On to any third party without prior written approval of QMetry for each such release.

3. Automatic Software Updates.

QMetry may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Add-On and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Add-On. If you do not cease using the Add-On, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Add-On and you agree to promptly install any Updates QMetry provides. Your continued use of the Add-On is your agreement to this EULA.

4. Support; Equipment.

This Agreement entitles you to email support and upgrades (collectively, “Support”) for one (1) year following the commencement of a fully paid support term for this version of the Add-On (or the next version, at QMetry’s sole discretion, during such one (1) year support term), provided that you comply with all the terms and conditions of this Agreement. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Add-On, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Add-On.

5. Ownership.

The Add-On and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of QMetry and its licensors. QMetry and its licensors reserve all rights in and to the Add-On not expressly granted to You in this EULA. The Add-On (and all copies thereof) is licensed to You, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by You to QMetry with respect to the Add-On shall be QMetry’ property. QMetry may use, copy, modify, publish, or redistribute Your submission and its contents for any purpose and in any way without any compensation to You. You also agree that QMetry does not waive any rights to use similar or related ideas previously known to QMetry, developed by its employees, or obtained from other sources.

QMetry shall have a royalty-free, worldwide, irrevocable, perpetual license to use Your Data to the extent necessary to provide and otherwise implement the Add-On. Subject to the express license granted by you hereunder, QMetry acquires no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.

Notwithstanding any contrary provision set forth herein, QMetry shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Add-On any comments, enhancement requests, recommendations or other feedback provided by you and relating to the operation of the Add-On.

6. Global Access.

QMetry reserves the right to provide the Add-On from locations, and/or through use of subcontractors, worldwide.

7. Excess Data Storage Fees.

The maximum disk storage space provided to You at no additional charge is 1 GB. If the amount of disk storage required exceeds these limits, You will be charged the then-current storage fees. QMetry will use reasonable efforts to notify You when the storage space reaches approximately 90% of the maximum; however, any failure by QMetry to so notify You shall not affect Your responsibility for such additional storage charges. QMetry reserves the right to establish or modify its general practices and limits relating to storage of customer data.

The licensee will have the option to receive one-time Free Attachment Storage add ons based upon the number of users the licensee registers. For more information regarding this Free Tier incentive please visit PRICING and FREE TIER

Customers have the option to purchase storage add-ons for 5GB, 10GB, and 25GB. Pricing for storage add-ons vary. For the most up to date pricing information please click HERE

Payment shall be made at time of purchase, and shall reoccur on a monthly basis. The payment for the storage add-ons shall be made via Paypal, and the reoccurring monthly charge shall autodebit from the Paypal account Customer used to purchase the add on. The storage add-on will occur for an unlimited term, until cancelled by Customer. To cancel, Customer can visit their Jira instance. Go to QMetry Menu on the top. Select Configuration. Select Attachment Storage option on left. Revise your storage option to FREE TIER.

QMetry reserves the right to change the Free Attachment add-ons as well as the pricing for the additional purchased add-ons at any time. Should Infostrech update these terms, Infostrech will send electronic notice to the customer identifying all pertinent changes. The electronic notice will allow the customer to agree to the changes or provide the customer with the option to opt-out.

8. Open Source.

Certain items of software included with the Add-On are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, QMetry makes such Open Source Software, and QMetry’ modifications to that Open Source Software, available by written request to QMetry at the email or mailing address listed below.

QMetry Inc
3200 Patrick Henry Drive, Suite 200
Santa Clara, CA 95054
Attention: Legal Department

QMetry is hereby providing to you the following information pursuant to the terms of certain Open Source software license agreements entered into between QMetry and third party open source providers:

Unless required by applicable law or agreed to in writing, all Open Source Software is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. PROVIDERS DISCLAIM ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY

Please review the applicable terms and conditions provided below as well as the additional Open Source software and the respective licensing terms and the specific language governing permissions and limitations set forth in the Open Source Addendum at the end of this Agreement.

A. Copyright 2016 QMetry Corporation

Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0

B. The MIT License (MIT)

Copyright (c) 2015 Auth0, Inc. support@auth0.com (http://auth0.com)

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

C. Copyright (c) 2010-2016 Jeremy Ashkenas, DocumentCloud

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

D. Copyright jQuery Foundation and other contributors, https://jquery.org/

This software consists of voluntary contributions made by many individuals. For exact contribution history, see the revision history available at https://github.com/requirejs/requirejs

The following license applies to all parts of this software except as documented below:

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

E. Copyright (c) 2010-2016, Michael Bostock All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

* Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

* The name Michael Bostock may not be used to endorse or promote products derived from this software without specific prior written permission.

9. Term and Termination.

This EULA and the license granted hereunder are effective on the date you first use the Add-On and shall continue until the Add-On subscription is terminated. QMetry may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to QMetry. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Add-On, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.

10. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QMetry PROVIDES THE ADD-ON “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. QMetry DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE ADD-ON. QMetry MAKES NO WARRANTY THAT THE ADD-ON WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

11. Limitation of Liability.

Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

NOTWITHSTANDING ANY CONTRARY PROVISION SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) QMetry BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, MULTIPLE, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE ADD-ON, EVEN IF QMetry KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) QMetry’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE ADD-ON, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO QMetry (IF ANY) FOR THE ADD-ON AT ISSUE IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE QMetry’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. QMetry DISCLAIMS ALL LIABILITY OF ANY KIND OF QMetry’S LICENSORS AND SUPPLIERS.

12. Confidentiality.

“Confidential Information” shall mean the Add-On and all other information disclosed to you that QMetry characterizes as confidential at the time of its disclosure either in writing or orally and information that is by its nature or the context in which it was given confidential or proprietary information of QMetry, regardless of its marking or designation, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and thereafter in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of QMetry. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify QMetry in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with QMetry in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify QMetry prior to such disclosure to allow QMetry an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with QMetry in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

13. For U.S. Government End Users.

The Add-On is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Add-On is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

14. Export Compliance.

The Add-On and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Add-On and related technology, as may be required. You will indemnify and hold QMetry and its subsidiaries and affiliates harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.

15. Governing Law; Venue.

The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any claim, controversy, or dispute arising from this EULA shall be resolved by mandatory arbitration. Either party may request arbitration and a neutral arbitrator agreeable to both parties will conduct the arbitration in accordance with the United States Arbitration Act (Title 9, U.S. Code). If the parties cannot agree on a neutral arbitrator, the matter shall be referred to either the American Arbitration Association or the Judicial Arbitration and Mediation Services/Endispute Inc. (JAMS/Endispute). The arbitration will be conducted solely and exclusively in Santa Clara County, California. The arbitrator shall make a reasoned decision based on the laws of the State of California and shall prepare a written opinion stating the reasoning behind his/her decision. The award rendered by the arbitrator will be binding on both parties. The judgment upon the award rendered by the arbitrator may be entered in any court (state or federal) having jurisdiction over the parties. The prevailing party as determined by the arbitrator will be entitled to reimbursement for attorney’s fees, expenses and costs of investigation, litigation, and arbitration from the other party. Notwithstanding the foregoing, QMetry may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.

16. Assignment.

Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.

17. Notices.

Any notice to you may be provided by email to the address that you registered with QMetry or the Atlassian Marketplace.

18. Severability.

If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

19. Waiver.

All waivers by QMetry will be effective only if in writing. Any waiver or failure by QMetry to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

20. General.

Notwithstanding any contrary provision set forth herein, the Add-On is deemed irrevocably accepted upon your use of the Add-On. The parties are independent contractors. Nothing contained herein shall create an employment, partnership, principal-agent relationship, or joint venture between the parties.

You acknowledge that the Add-On contains valuable trade secrets and proprietary information of QMetry, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to QMetry for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

No amendment to this EULA will be valid unless it is in writing hand-signed by the parties.

Questions or Additional Information. If you have questions regarding this EULA, please contact QMetry at the below address:

QMetry Corporation
3200 Patrick Henry Drive, Suite 250
Santa Clara, CA 95054
Attention: Legal Department
legal@QMetry.com

(please note all legal notices under this EULA shall be sent in writing to the address above, not by email)