About the new Software terms - "scent of Intel" re:performance?

terms

#1

So, I have been reading through the new terms, I thought this would be a good topic to open:

Both Cloud and Non-Cloud terms that are to come into effect 1 NOV have a few things of interest I’d like to push out there for comment:

Para (3.3 Server, 3.2 Cloud): … (i) publicly disseminate information regarding the performance of the Software;
This sounds very much like the nonsense clause that Intel were derided for, regarding performance of their CPU’s. Intel backtracked after being lambasted by the world, I can’t really understand how these points got in to new Atlassian terms, surely the terms have had a technical review?

Just… why, given all the DC testing being done ongoing, this is an area where data we gathered may be interesting to prospective customers.

Para (3.3 Server, 3.2 Cloud): … (j) encourage or assist any third party to do any of the foregoing.
So, we can’t guide/help a customer understand how to even measure performance to determine if they have a performance issue in the “Software”,e.g. generating a performance baseline before an ‘app’ is involved?

The result of this would appear sub-optimal for Customer and Vendors alike, the “Software” performance just becomes 3rd party App performance that we cannot ‘explain’ or ‘show’ to customers.

Atlassian, these are not OPEN clauses that I’d expect to see from an OPEN company!


#2

Now (2018-09-30) it’s paragraph 3.3 but as I looked to current terms there is nearly the same clause -

  1. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: […] (g) publicly disseminate information regarding the performance of the Products.

#3

This is so community hostile. Have lawyers taken over Atlassian?


#4

Wow. So if I would, hypothetically, find JIRA to be slow and unresponsive, I could not tell anyone? Would I be allowed to open a public support ticket describing my experience and asking for a solution?


#5

Is there anything in the Software Terms that prevent the Software Terms from being disseminated publicly?


#6

Although I understand the concerns raised here, I do think it is important to see context. You are talking about a publicly traded company with a large customer base and rapid growth. It is not uncommon that they are trying to add a minimal layer of legal protection.

In the end I think it is more about their actions: to what extend is Atlassian going to enforce this. Personally, I think that they will engage with vendors & customers that voice their concern about stability and performance of the products. However, they also need a line of defence if someone is trying to deliberately discredit Atlassian or the Atlassian products.

So before we bring out the pitchforks, let’s wait until these terms go into effect and how Atlassian is going to use them.


#7

They should take it out. Any cloud vendor that includes language like this in their EULA doesn’t deserve to be in the cloud. I work for a SaaS company, I can’t imagine us putting a clause like this in our EULA. How many SaaS companies do something like this? Seems pretty arbitrary and ridiculous.


#8

I’ve worked with a few companies that have this sort of restriction. Firstly, I would always discuss any presentation about performance work with the company before it was presented. This kind of information can have impact on the financials, which means the legal team will always want to protect the company.

Andy - if your plugin has performance problems due to the underlying Atlassian tool, then I’ve seen you address the problem together with Atlassian. Is this really a problem for you, or just feels “not open”?

If the company wanted to ignore the information (unlikely in Atlassian’s case) then information usually finds a way to spread, by mouth for example.


#9

Hi Matt,
The blanket nature of the clauses covers anything relating to performance comparison or helping the customer do do anything like that, so firstly, its about freedom of speech and our ability to do our best to help customers by discussing and documenting anything, secondly, its about being able to provide customers with info so they can verify a given case, and justify them raising it with Atlassian to get such problems worked on (as Customer involvement is always the secret sauce in “getting things done”).

About legal; such terms do give Atlassian legal grounds to go after ‘bad actors’ who want to somehow discredit Atlassian with data that use deliberately biased performance data (shame on them) but any kind of performance data is always going to be biased/subjective to a particular deployment/usage/etc, such opinions are are like ***holes, everyone has one, no need to get all legalese over them.

About Atlassian involvement; yes of course we communicate pretty much everything privately with Atlassian through their support channels in the first instance, the point is that there is no a guarantee of it being worked on or resolved in any particular time frame, so our pattern is generally is to Log and Publish, this is us being Open and Transparent. These clauses taint that Published info where performance is even mentioned.


#10

Hi @andy, for starters, these are legal terms, and I’m not a lawyer. That being said, I dug around a bit, and the language in the terms related to benchmarking is not new – it’s been included since 2012. Atlassian is not trying to prevent any users from internally assessing the performance of our products.

However, like many other software companies, Atlassian put this language in the terms to protect users from flawed reviews and benchmarks. By requiring reviewers to obtain Atlassian’s consent before publicly disseminating their results, Atlassian can confirm their benchmarking methodology (i.e. latest release, type of web browser, etc.) and make sure they deliver a verifiable review.


#11

Hi @nmansilla,
The terms don’t mention ‘benchmark’ or ‘review’, just ‘publicly disseminate information’; if they have to be interpreted then they are too general! If they are meant to be a stick to use against anyone doing a product comparison or side-by-side performance comparison for commercial reasons, fair enough but that’s not the context here:

Like most Marketplace vendors we have publicly disseminated information that most likely contain information relating to some aspect of performance of the Software in specific scenarios related to our Marketplace apps. Are the terms meant to be applied to us in the same way - its just so hard to tell and is why I created this post in the first place.