This Agreement is the entire agreement of the parties regarding the Services (as defined in the Order), superseding all other agreements with respect to the Services between Company and Jask, whether oral or written. In the event of a conflict between the terms and conditions of an Order and the terms and conditions of these Terms, the terms and conditions of the Order govern. Capitalized terms utilized but not defined in these Terms are defined in the Order.
General. Subject to the terms and conditions of this Agreement, Jask grants to Company a nonexclusive, worldwide, nonsublicensable, and nontransferable license to access and use the Services including granting Company’s authorized employees (each, a “User”) the right to access and use the Services. Jask will use commercially reasonable efforts to provide the Services.
Support. Jask will provide the technical maintenance and support services outlined in Exhibit D (“Support Terms”), and these Support Terms are incorporated into this Agreement by reference.
Professional Services. In the event that Company elects to have Jask perform any integration, design, operational and/or other professional services (collectively, “Professional Services”), the parties will enter into a statement of work (“SOW”) governing the provision of such Professional Services. The SOW will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern. The SOW will include (a) a description of the Professional Services, (b) the schedule for the performance of the Professional Services, and (c) Jask’s then-current rates for the performance of the Professional Services.
Service Data. Company grants to Jask a non-exclusive, royalty-free, worldwide, sub-licensable right and license to reproduce, modify and store all electronic data or information (a) provided by Company to Jask via the Services, or (b) otherwise accessed by the Services (“Service Data”) in connection with the Services.
Passwords. Company is responsible for maintaining the confidentiality of its User passwords, IDs or other credentials and login information (collectively, “Passwords”), and Company agrees that Jask has no liability with respect to the use of any Passwords. Company must notify Jask immediately if Company has reason to believe that the security of Company’s account has been compromised or if any of the Services have been accessed by any unauthorized individuals.
Fees and Payment Terms.
Subscription Fees. In exchange for Company’s right to use the Services, Company will pay to Jask the Subscription Fees. The Subscription Fees do not include taxes. The Subscription Fees are made up of (a) the fixed annual payment that is due and payable in advance and (b) the usage fee (which is set forth in the package Company selected), which is due and payable on an annual basis in arrears.
Payment Terms. Company will pay the Subscription Fees for the Services set forth in an Order in accordance with the payment terms set forth in such Order. Unless otherwise set forth in an Order, the initial payment of the Subscription Fees with respect to an Order must be paid by Company within five days of the Effective Date of such Order. Unless Jask states otherwise, all payments must be made (a) in U.S. Dollars and (b) by check or a payment card via an authorized Jask payment processor.
Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Company will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Services, excluding only taxes based solely on Jask’s net income. Notwithstanding any terms to the contrary in this Agreement, (a) Jask will not be obligated to issue any refunds for Subscription Fees paid, and (b) Jask, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period, and (b) Jask, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period..
Term, Termination and Effects of Termination.
Term. Unless terminated as set forth in this Agreement, the term of this Agreement will be for the Subscription Period, and thereafter this Agreement will automatically renew for successive periods equivalent to the length of the Subscription Period (each period referred to as a Subscription Period), unless a party terminates this Agreement by providing the other party with written notice of its desire to terminate this Agreement no less than 60 days prior to the close of the then-current Subscription Period.
Termination. Company may terminate this Agreement, for convenience, at any time with 30 days’ advance written notice to Jask. Either party may terminate this Agreement, for cause, if the other party breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach. Further, notwithstanding any terms to the contrary in this Agreement, Jask may suspend use of the Services (or any portion thereof) without liability if Jask is required by any applicable laws to suspend the Services.
Effects of Termination. Upon any expiration or termination of this Agreement (a) all rights and licenses granted to Company under this Agreement will immediately terminate and (b) Company will immediately pay to Jask all amounts due and payable up to the effective date of termination of this Agreement. Notwithstanding any terms to the contrary in this Agreement, this paragraph and Sections 3, 6, 7, 8, 11 and 12 will survive any termination or expiration of this Agreement.
Representations, Warranties and Remedies.
General. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms.
Limited. We warrant that, under normal use for a period of 60 days following the first date of delivery to you, the Software will operate substantially as described in our published documentation and user manual accompanying such delivery (“Documentation”). If the Software fails to meet the foregoing warranty (“Warranty”) during the foregoing warranty period, then we will use commercially reasonable efforts to correct the nonconformity. The Warranty does not apply (i) to the extent the Software is subjected to misuse, negligence or accident, or is used in an environment or a manner or purpose for which it was not designed as specified in the Documentation, or other than permitted herein, (ii) for claims resulting from the acts or omission or the installation, modification, alteration or repair of the Software by a person or entity other than by us or our authorized agents, or (iii) any other cause or circumstance outside of our control. We further warrant that we have the right to enter into this Agreement and that we have used commercially reasonable efforts to prevent the Software, when delivered to you, from containing any malicious code or virus. If we cannot correct the Software as described in this Section, your sole and exclusive remedy, and our sole liability, for breach of Warranty shall be a refund of the fees paid by you to us for the nonconforming Software during the period of non-compliance.
Specific. Jask represents and warrants that (a) it will perform the Support and Professional Services (if any) in a professional and workmanlike manner, (b) it will use commercially reasonable efforts to provide the Services in accordance with the Service Standards set forth in Section 9, (c) the Services will conform, in all material respects, to the applicable specifications set forth in the applicable Order (the “Specifications”). Further, Company possesses the necessary rights and consents to grant Jask the rights set forth in this Agreement with respect to the Service Data.
Disclaimer. EXCEPT AS SET FORTH IN SECTION 5, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
Jask Indemnification. Jask, at its sole expense, will defend Company from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Company from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Jask resulting from or arising in connection with the exercise of any of the rights granted to Company under Section 1 with respect to (a) the Services infringing any Intellectual Property Rights (as defined below) of any third party, or (b) any negligence or willful misconduct by Jask or any party acting on behalf of Jask. Jask’s indemnification obligations do not extend to Claims arising from or relating to (i) any negligent or willful misconduct of Company or any of Company’s employees, contractors and/or service providers (collectively, the “Company Personnel”) or any third party, (ii) any combination of the Services (or any portion thereof) by any of the Company Personnel or any third party in combination with any equipment, software, data or any other materials, (iii) any modification to the Services by any of the Company Personnel or any third party, (iv) the use of the Services by any of the Company Personnel or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use, or (v) any act or omission of any of the Company Personnel where the infringement would not have occurred but for such act or omission. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of Intellectual Property Rights recognized in any jurisdiction, including applications and registrations, for any of the foregoing.
Company Indemnification. Company, at its sole expense, will defend Jask from and against any and all Claims and indemnify Jask from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Company resulting from or arising in connection with the alleged or actual breach of any of Company’s representations or warranties, or any negligence or willful misconduct by Company (including, but not limited to, any of the Users) or any party acting on behalf of Company.
Procedures. The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
Limitation of Liability.
Consequential Damages Waiver. EXCEPT FOR (A) EACH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 10, (B) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, 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.
Liability Cap. EXCEPT FOR (A) EACH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 10, (B) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY TO JASK DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED. FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, (A) THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF ANY SERVICE LEVEL STANDARDS ARE THE CREDITS PROVIDED UNDER THIS AGREEMENT UNLESS SUCH FAILURE IS DUE TO JASK’S WILLFUL MISCONDUCT AND (B) JASK WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY SERVICE DATA OR OTHER DATA UNLESS SUCH DISCLOSURE, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS SOLELY AND DIRECTLY RESULTS FROM JASK’S FAILURE TO MEET THE SECURITY STANDARDS (AS DEFINED BELOW).
Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 8 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Security Standards and Service Level Standards.
Jask will use commercially reasonable efforts to meet the security standards described in Exhibit A. The service levels applicable to the Services as set forth in Exhibit B (“Service Level Standards”).
Restrictions. Except as expressly authorized by this Agreement, Company may not (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof), (c) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, (d) copy, frame or mirror any part or content of the Services, (e) build a competitive product or service, or copy any features or functions of the Services, (f) interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) disclose to any third party any performance information or analysis relating to the Services, (i) remove, alter or obscure any proprietary notices in or on the Services including copyright notices, (j) disclose or make available Passwords that Jask has provided to Company or the Users, or (k) cause or permit any User or third party to do any of the foregoing.
Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement.
Feedback and Ownership. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Company to Jask with respect to Jask or the Services (collectively, “Feedback”) will constitute Confidential Information of Jask. Further, Jask will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. As between the parties and subject to the grants expressly set forth in this Agreement, Jask, notwithstanding any terms to the contrary in this Agreement, owns all right, title and interest in and to the Services and Jask Analytic Data (as defined below), together with any and all Intellectual Property Rights embodied in or relating to the foregoing.
Jask Analytics. Company acknowledges and agrees that Jask may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Services and/or any individuals/entities that interact with the Services and any Service Data (collectively, “Jask Analytic Data”).
Publicity. Company consents to (a) Jask’s use of Company’s name and logo on the Jask websites and publicly-available printed materials, identifying Company as a customer of Jask and describing Company’s use of Jask’s products and services, and (b) a press release with respect to Company’s use of Jask’s products and services.
Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Jask to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).
Electronic Communications. Jask may choose to electronically deliver all communications with Company, which may include email to the email address Company provides to Jask. Jask’s electronic communications to Company may transmit or convey information about action taken on Company’s request, portions of Company’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Company agrees to do business electronically with Jask and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email
Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either party may assign this Agreement without other party’s prior written consent to any third party that purchases all or substantially all of such party’s business or assets by merger, acquisition, sale, reorganization, or otherwise. Subject to the other terms and conditions set forth in this provision, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Waiver and Severability. A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, at the time of initial disclosure to the Receiving Party or, if the Disclosing Party makes an oral disclosure, the Disclosing Party, within 10 days of such oral disclosure, notifies the Receiving Party in writing that the information disclosed by the Disclosing Party should be treated as confidential/proprietary to the Disclosing Party. Confidential Information includes, but is not limited to, the Services, the components of the business plans, financial plans, know-how, Company information, strategies and other similar information.
The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the ten-year period commencing upon the effective date of termination of this Agreement, and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and if such directors, officers, employees and/or contractors have executed a nondisclosure agreement with the Receiving Party with terms no less restrictive than the nondisclosure obligations contained in this Section 10. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement (a) to such party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or similar transaction.
Confidential Information will not include information that: (a) is or becomes publicly available without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 10, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
Compliance. Company will use the Services pursuant to, and only for the purposes set forth in this Agreement. Company will not use, nor will Company permit any End User to use, the Services for any unlawful purpose or in furtherance of any unlawful purpose or activity, or any other purpose that does not comply with this Agreement. If JASK has reasonable grounds to believe that Company or any End User is using the Services for any improper or unauthorized purpose, JASK may suspend or terminate the Services immediately upon notice to Company.
Company will not use the data that is processed and obtained through the Services (the “Data”) in any way that violates any applicable laws, including, but not limited to, any of the following (to the extent they apply): (a) the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”); (b) the Gramm Leach Bliley Act, 15 U.S.C. § 6801, et seq., (c) the Driver’s Privacy Protection Act, 18 U.S.C. § 2721, et seq. and similar and/or associated federal and state laws and regulations governing the use and disclosure of drivers’ license information; or (d) any other federal, state or local statue, regulation, rule or other governmental mandate that governs the use of the Data. The Data is not provided or processed through a consumer-reporting agency as defined by the FCRA. Further, Company hereby agrees that it will not use the Data for any purposes enumerated in the FCRA in lieu of obtaining a “Consumer Report” (as such term is defined in the FCRA). Company further agrees that it will not use any part of the Data for the purpose of serving as a factor in (a) establishing an individual’s creditworthiness or eligibility for credit or insurance or assessing risks associated with existing credit obligations, (b) evaluating an individual for employment purposes, (c) determining an individual’s eligibility for a license or other benefit that depends on an applicant’s financial responsibility or status, or (d) for any other purpose under the FCRA. Company agrees not to use any part of the Data in the preparation of a Consumer Report. Company shall not take any adverse action, which is based in whole or in part on the Data, against any consumer (the terms “adverse action” and “consumer” shall have the same respective meaning s as those terms are defined in the FCRA). If and to the extent that the Data is transferred by Company to its own customers or other third parties (in whole or in part), then Company warrants that its agreement with such customers will have covenants and restrictions similar to the ones set forth in this Section 4.2.2. Company further agrees that any collection, transfer and/or use of personally identifiable information (“PII”) is governed by applicable data Privacy Laws (as defined below). Although, no PII is being provided under this Agreement, if PII is provided by Company, Company represents and warrants that it will comply with Privacy Laws and exercise reasonable security procedures relating to the transfer and use of any and all PII in order to prevent unauthorized access and use of the Data. “Privacy Laws” means any and all applicable domestic and foreign privacy laws and regulations that govern the use and restriction of the collection of data, and may include without limitation the PII provisions under Section 631 of the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. § 551 (the Cable Act); the Children’s Online Privacy Protection Act (COPPA); local and foreign laws and industry standards restricting unsolicited email, fax and telephone contact; laws requiring compliance with published privacy policies; and laws requiring data breach Company notification; and laws and regulations.
Company agrees that in the performance of this Agreement, it will comply with all applicable economic sanctions, export control, and anti-boycott laws of the United Kingdom, European Union, United States, and any other applicable jurisdiction, including by way of example the U.S. Export Administration Regulations, U.S. economic sanctions programs, and the economic sanctions rules of the European Council. Company represents and warrants that neither it nor any parent, subsidiary, affiliate, or associated company involved in the performance of this Agreement is included on any restricted party list maintained by the UK, EU, U.S., or other relevant government authority, including by way of example the Specially Designated Nationals List and Foreign Sanctions Evaders List administered by OFAC, the UK consolidated list of financial sanctions targets, and the consolidated list of persons subject to EU financial sanctions, and is not owned or controlled by a restricted party. In the performance of this Agreement, Company will not do business with or provide goods or services, directly or indirectly, to anyone on the restricted party lists or to any country with which trade is prohibited by U.S., UK, EU, or other applicable sanctions.
Unauthorized Conduct. Company will not, directly or indirectly, transmit or knowingly permit End Users to transmit, directly or indirectly, to any of JASK’s servers any Unauthorized Code. “Unauthorized Code” means any virus, software program or segment of code, or other programming design, instruction, or routine that permits unauthorized access to any JASK server, or the Services and is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any of the foregoing or any system, data, or personal information.
Company will not (a) breach or attempt to breach the security of any network, servers, data, computers or other hardware or software relating to or used in connection with the Services or belonging to or used or leased by any other customer of JASK or any third party that is hosting or interfacing with any part of the Services; or (b) use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Services or the operations or assets of any other customer of JASK or any third party.
Company will not modify or tamper with the Services (including the Service Platform) in any way. Furthermore, Company will not, and will not knowingly permit any End User to, reproduce, copy, translate, modify, adapt, create derivative works from, distribute, transmit, transfer, republish, reverse engineer, decompile, or otherwise attempt to discover any object code, compile or attempt to compile any object code from any source code, or remove or delete any portion of the Services (including the Service Platform).
Company will not remove or alter any of JASK Marks (as defined below), or co-brand its own products, services or material with JASK Marks, without JASK prior written consent. Company will not incorporate any of JASK Marks into Company’s trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with Company’s business or any of Company’s products, services or technologies. “JASK Marks” means and includes all names, marks, brands, logos, designs, trade dress, slogans and other designations JASK uses in connection with its business, services and products.
Audit. JASK, upon reasonable advance notice, at its sole cost and expense, shall have the rights to audit, inspect and otherwise monitor Company’s compliance with this Agreement or any other contractual obligations of Company related to the Services, including, without limitation, compliance with all applicable laws and regulations, but no more frequently than once during a twelve (12) month period. Company agrees, upon reasonable notice and at reasonable times, to cooperate with respect to any and all audits and to respond to such audit inquiry within fifteen (15) business days, unless an expedited response is required. If any audit by JASK results in JASK being notified that Company is not in compliance with a legal requirement or any of Company’s obligations to JASK, JASK, in its sole discretion, shall either (i) require Company to take appropriate action to remedy the non-compliance and provide JASK with evidence of the steps taken to rectify the audit finding, (ii) have the right to suspend and/or terminate this Agreement immediately by providing written notice to Company. Company and JASK agree this Agreement shall be deemed to be amended from time to time to the extent necessary to comply with all applicable federal and state laws and/or privacy and information security requirements and directives of regulators having jurisdiction over JASK. Any such auditing of Company must take place at Company Premises and at JASK’s expense.
SERVICE LEVEL STANDARDS
Service Levels and Credits
The availability goal for the Services is 99.0% or more of the time during any calendar month (subject to the exclusions set forth under the heading “Exclusions” below (the “Exclusions”). The availability goal above does not apply to any feature of the Services that Jask identifies as a “beta” feature or service.
If Jask fails to make the Services available 99.0% or more of the time during any calendar month and such failure is not due to any of the Exclusions, Company will be eligible to receive a credit (“Services Credit”) calculated as a percentage of the Subscription Fees as set forth below. The Services Credits increase is based on the degree to which Jask has failed to make the Services available 99.90% or more of the time during any calendar month and such failure is not due to any of the Exclusions.
Services Credits are non-transferable and will be issued in U.S. dollars. To receive a Services Credit, Company must contact Jask in writing within the 30-day period commencing upon Jask’s failure to make the Services available 99.90% or more of the time during any calendar month. Any validated Service Credits will be applied against the next open invoice due to Jask by Company.
Notwithstanding any terms to the contrary in this Agreement, the Service Credits are Company’s sole and exclusive remedy for any failure by Jask to make the Services available 99.90% or more of the time during any calendar month where such failure is not due to any of the Exclusions.
Your Obligations, Acknowledgments and Warranties.
You acknowledge that the Software is designed to supplement other sources of information and is not intended to replace your professional discretion and judgment. You accept responsibility for, and acknowledge that you exercise your own independent and professional judgment in, the selection and use of Software and any results obtained therefrom. You warrant that you have the right to enter into this Agreement and to install the Software on any machine, equipment, device, network or system where the Software is installed.
You warrant that you will not upload to the Software or Service, or cause or allow to be uploaded to the Software or Service, any data or information for which you do not have sufficient rights. YOU ACKNOWLEDGE AND WARRANT THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE AND SERVICE, AND FOR ANY RELIANCE THEREON AND TO THE MAXIMUM EXTENT PERMITTED BY LAW YOU WAIVE ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST US ARISING THEREFROM OR RELATING THERETO. WE CANNOT AND DO NOT WARRANT THE RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SOFTWARE OR SERVICE.
You acknowledge and agree that our access, analysis and associated transmission of data, including personal data, shall be deemed authorized by you for purposes of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., and all other applicable international, federal, state and local laws, rules and regulations that relate to, regulate, or impact the subject matter of the Software.
During the Term, JASK will provide Customer help desk support for the Service Platform and the other Services during Business Hours, provided however, that for additional charges, JASK will offer such support at any time (24x7x365) (the “Enhanced Support”). JASK will respond to bugs and issues reported by Customer as provided below during Business Hours (or at any time, if the Enhanced Support is elected), and provide resolution as soon as is technically and operationally feasible.
Priority and escalation for all issues related to maintenance and upkeep of the Service Platform and related Services:
Impact: JASK Software is completely inaccessible or the majority of the Software functionality is not usable.
Targeted Service Restoration: 2 hours
Response Timeframe From receipt of service call: 30 minutes
Impact: One or more key features of the Software is unusable
Targeted Service Restoration: 8 hours
Response Timeframe From receipt of service call: 2 hours
Impact: Any other case where a JASK Software feature is not operating as documented
Targeted Service Restoration: Next Release
Response Timeframe From receipt of service call: 24 hours if call is received prior to 12:00 p.m. Eastern Time
Impact: All enhancement requests
Targeted Service Restoration: At JASK’s discretion
Response Timeframe From receipt of service call: Within one (1) Business Days during Standard Support Hours