Terms and Conditions
BY COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE “I AGREE”, “CREATE” OR OTHER AUTHORIZING BUTTON, ACCESSING OR USING THE HOSTED SERVICE (AS DEFINED BELOW), YOU HEREBY AGREE TO THE FOLLOWING TERMS AND CONDITIONS. YOU FURTHER AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE HOSTED SERVICE WHICH JIVE OR ONE OF ITS AUTHORIZED RESELLERS (A “RESELLER”) PROVIDES OR MAKES AVAILABLE TO CUSTOMER.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, JIVE IS UNWILLING TO PROVIDE THE HOSTED SERVICE TO THE CUSTOMER, AND YOU SHOULD NOT CLICK TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU SHOULD DISCONTINUE THE ACCESS AND USE OF THE HOSTED SERVICE.
1.0 ACCESS RIGHTS AND RESTRICTIONS.
1.1 Provision of Hosted Service; Restrictions.
- (a) Provision of Hosted Service. Subject to the terms of this Agreement, Jive will make subscriptions to access and use the beta software offerings made available by Jive and/or its suppliers on a hosted, software-as-a-service (SaaS) basis (collectively “Hosted Service”) and the related user documentation (“Documentation”) available to Customer and its users.
- (b) Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Hosted Service or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Hosted Service (or any portion thereof) to third parties, including, but not limited to, making such Hosted Service available (i) through resellers or other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) create modifications to or derivative works of the Hosted Service; (d) attempt to modify, alter, or circumvent the license control and protection mechanisms within the Hosted Service; (e) use or transmit the Hosted Service in violation of any applicable law, rule or regulation, including, without limitation, any data privacy or protection laws; (f) intentionally access, use, or copy any portion of the Hosted Service or the Documentation (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Hosted Service; or (g) remove, obscure or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation included on any display screen within the Hosted Service (“Jive Marks”). The Hosted Service 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 Hosted Service is made available to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
All rights granted pursuant to this Agreement are, for purposes of Section 365(n) of the U.S. Bankruptcy Code, deemed to be rights to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. In any bankruptcy or insolvency proceeding involving Jive, Customer, as recipient of such rights, will retain and fully exercise all of its rights and elections under the U.S. Bankruptcy Code, which will apply notwithstanding conflict of law principles.
2.0 ACCEPTABLE USE.
3.0 PROPRIETARY RIGHTS.
As between the parties, Jive and its suppliers will retain all ownership rights in and to the Jive Marks, the Hosted Service, the Documentation , all Updates and Upgrades (as defined in the Support Terms)and other derivative works of the Hosted Service and/or Documentation that are provided by Jive, and all intellectual property rights incorporated into or related to the foregoing. Customer acknowledges that the goodwill associated with the Jive Marks belongs exclusively to Jive. All rights not expressly licensed by Jive under this Agreement are reserved. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Confidential Information, all pre-existing Customer intellectual property and all Customer Content. Jive may use without limitation any suggestions, recommendations or other feedback provided by Customer regarding the Hosted Service.
THE HOSTED SERVICE IS PROVIDED “AS-IS” AND JIVE EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. JIVE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
5.0 LIMITATIONS ON LIABILITY.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) FAILURE TO PAY AMOUNTS PROPERLY OWED, (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND (III) VIOLATIONS OF JIVE’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER JIVE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) JIVE’S AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, ONE HUNDRED US DOLLARS ($100).
6.0 TERM, TERMINATION AND EFFECT.
6.1 Term and Termination.
This Agreement shall commence as of the date the Customer first accesses the Hosted Service and shall continue in effect until terminated as set forth herein. This Agreement may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party, or (b) by Jive at any time for any reason or no reason, as determined by Jive in its sole discretion.
Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have under this Agreement, (a) all subscriptions, rights and obligations hereunder shall immediately cease; provided that Sections 3.0-5.0, 6.2 and 7.0 through 8.0 and any other provisions with express survival language shall survive termination, and (b) Customer shall pay to Jive any outstanding Fees that have accrued prior to the date of termination. Customer will have access to Customer Content stored in the Hosted Service during the term.
7.0 FEES AND PAYMENT.
Subject to the terms and conditions below, applicable fees (if any) for subscriptions to the Hosted Service (collectively, the “Fees”) will be set forth on an invoice.
7.2 Payment Terms.
Unless otherwise agreed to in writing by the parties, Customer will pay to Jive or the Reseller, as applicable, any applicable Fees owed within 30 days of the date of the invoice pertaining thereto. Payments will be sent to the address included on the invoice. Any amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Jive’s income). Each party is responsible for its own expenses under this Agreement unless set forth in an Order Document.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the party so excused will be extended on a day to day basis for the duration of the Force Majeure Event. This Agreement applies to each party’s users, representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Santa Clara County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Documents agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Jive. The terms on any purchase order or similar document submitted by Customer to Jive will have no effect and are hereby rejected. Unless otherwise expressly stated, all legal notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its official headquarters to the attention of the chief legal officer and are deemed delivered when received. This Agreement may be executed in counterparts.