This Jifflenow Software as a Service License Agreement (the “Agreement”) is entered into as of the date you accept the terms of the Agreement (the “Effective Date”), by and among and iPolipo Inc., a Delaware corporation d/b/a Jifflenow (“Company”), and you (the “Licensee”) (each a “Party” and collectively the “Parties”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you”, “your”, or “Licensee” shall refer to such entity. If you do not have such authority or if you are not willing to be bound by these terms and conditions do not accept this Agreement and do not use the Software or Company System. By accepting this Agreement or by using or accessing the service, Licensee agrees to be bound by the following terms and conditions.
Company is a provider of meeting scheduling and management software solutions. Licensee desires to license such software solutions from Company, and Company desires to grant a license to such software solutions pursuant to the terms and conditions hereof.
During the period of this Agreement, the Company will provide required services and the deliverables to the Licensee as described in the Jifflenow Business Services Order (the “BSO”) incorporated by reference into this Agreement. Should any conflict arise between the terms of the BSO and this Agreement, the BSO shall control only to the extent of the conflict.
In consideration of the agreements contained below, the parties hereby agree as follows:
“Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a party hereto, or by an entity which owns or controls a party hereto, as applicable.
“Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving party within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Software and the Company System shall be deemed Confidential Information of Company. The Licensee Data and the existence of this Agreement, shall be deemed Confidential Information of Licensee.
“Documentation” means any documentation provided by Company for use with the Software under this Agreement.
“Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
“Licensed Materials” means the Software and the Documentation.
“Licensee Data” means (a) meeting information, including but not limited to customer name, date, location, type, time and duration of the meetings, meeting agenda, (b) name, title, email, company, phone number of each meeting attendee, and (c) user, user profiles, and behavior.
“Company System” means the Software operated on Company’s hosting servers or those of its hosting service provider intended to enable the Licensee to interact with the same via the worldwide web.
“Software” means Company’s meeting scheduling software, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Licensee, or any third party.
“User” means an employee of Licensee authorized to use the Software.
Company will host and maintain the Software on servers operated and maintained by or at the direction of Company; and configure the meeting tool for the Licensee. Company may in its sole discretion modify, enhance or update or otherwise change the Software.
Company shall ensure availability of the Company System and provide technical support of the Company System in accordance with the Company Service Level Agreement. Company shall not be obligated to provide to the Licensee any new release of any Software or module thereof, or other software or services for which Company generally charges a separate fee.
The Licensee will cooperate in setting up the Software as reasonably requested by Company, including without limitation by providing Company with the information required to setup the meeting tool.
The Licensee will be responsible for obtaining and maintaining at the Licensee’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required to access the Company System.
Licensee will provide true, accurate, current and complete Account information; and maintain and promptly update all Account information to keep it true, accurate, current and complete.
Company will have the right to review and monitor all use of the Company System to ensure compliance with all of the terms of this Agreement.
Grant. Subject to the terms and conditions of this Agreement, Company grants to Licensee a limited, non- exclusive, non-transferable, worldwide license, without the right to sublicense, to permit Users to use the Software and the Documentation via the Company System solely for internal use as it relates to operations of the Licensee and its Affiliates. For clarity, “internal use” in the foregoing sentence only includes use of the Software to schedule meetings with Licensee’s employees, executives, customers, partners, press and analysts, and those of its Affiliates.
License Restrictions. Licensee shall not, and shall not permit any third party to: (i) use the Licensed Materials except to the extent permitted in Section 5.1; (ii) modify or create any derivative work of any part of the Licensed Materials; (iii) permit any third parties to use the Licensed Materials; (iv) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Licensed Materials; or (v) use the Licensed Materials for commercial time-sharing or service bureau use.
Copies of Documentation. Licensee may make a reasonable number of copies of the Documentation solely to support Licensee’s use of the Software as authorized under this Agreement, provided that such copies shall include Company’s copyright and any other proprietary notices that appear on the original copies of the Licensed Materials. Any copies of the Documentation made by Licensee are the exclusive property of Company.
Reservation of Rights. Company reserves all rights to the Company System not otherwise expressly granted in this Section 5.
Subject to the terms and conditions of this Agreement, the Licensee hereby grants Company a limited, worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Licensee Data solely in order to enable the Software to use the Company System. Company shall have no right to sub-license or resell the Licensee Data or any component thereof. Company shall have no right to use or share the Licensee data with anyone other than the Licensee.
License Fees. In consideration for the license granted by Company under this Agreement, Licensee shall pay Company the license subscription fees in the amount set forth in the BSO (the “License Subscription Fees”) in accordance with the terms set forth therein. License Subscription Fees are subject to change with each new BSO. License Subscription Fees are non-refundable.
Taxes. Licensee shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Company’s net income. Licensee agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Licensee’s failure to report or pay any such taxes, duties or assessments.
Payment Terms. All undisputed amounts payable to Company under this Agreement will be due within sixty (60) days from receipt of an invoice. Overdue payments will be subject to interest at the rate of 1% per month, or the maximum allowable under applicable law, whichever is less.
Licensee. As between Licensee and Company, the Licensee shall retain all right, title and interest in and to the Licensee Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Company any right of ownership or interest in the Licensee Data or the Intellectual Property rights therein.
Company. As between Licensee and Company, Company shall retain all right, title and interest in and to the Software, the Company System, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the parties all such rights shall vest in and be assigned to Company including any modifications, derivations, enhancements, compilations or changes to or from any of the foregoing by or on behalf of Licensee in relation to Licensee’s use of the Software. Nothing in this Agreement will confer on Licensee any right of ownership or interest in the Software, the Company System, or the Intellectual Property rights therein.
Scope of Limited Warranty. Company warrants to Licensee that during the Term, the Software will perform substantially in accordance with the Documentation. The foregoing warranty shall not 9.1 apply to performance issues of the Company System (i) caused by factors outside of Company’s reasonable control; (ii) that result from any actions or inactions of Licensee or any third parties; or (iii) that result from Licensee’s data structure, operating environment or equipment.
Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 9, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, THE COMPANY SYSTEM, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN EXHIBIT A, THE SOFTWARE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.
Term. Unless earlier terminated as provided in this Section 10, this Agreement will have an initial term of one (1) year (the “Initial Term”), which shall commence as of the Effective Date. Should the BSO expire prior to the expiration or termination of this Agreement and the parties do not enter into a new BSO within 180 days, this Agreement shall automatically terminate.
By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non- breaching Party; or
if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
Effect of Termination. Upon termination of this Agreement, each Party shall promptly return, or at the other Party’s request destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party (including without limitation the Licensee Data and the Documentation). Sections 1, 5.2, 8, 9.3, 10.2.2, and 11-14 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
Remedies. The Receiving Party agrees that a breach of this Section 11 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR BREACH OF SECTION 5 OR SECTION 11 AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES ARISING UNDER SECTION 13 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR BREACH OF SECTION 5 OR SECTION 11 AND INDEMNIFICATION LIABILITY ARISING UNDER SECTION 13 OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE DISCRETE VALUE OF SERVICES PROVIDED UNDER THIS AGREEMENT IN THE ONE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Indemnification. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that the Company System (as to Company), or the Licensee Data (as to Licensee) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and Company will have no obligation to the Licensee for, any infringement or misappropriation claim that arises from (i) modifications to the Company System by anyone other than Company, (ii) modifications to the Company System based upon specifications furnished by the Licensee, (iii) Licensee’s use of the Company System other than as specified in this Agreement or in the applicable documentation, (iv) use of the Company System in conjunction with third- party software, hardware or data other than that approved by Company, or (v) any combination of the foregoing. Licensee shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Company all reasonable information and assistance regarding such claim.
The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.
In the event any portion of the Company System is held or believed by Company, or any portion of the Licensee Data is held or believed by the Licensee, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Company System is used or accessed, then in addition to any other rights in this Section 13, Company (where the Infringing Materials are the Company System) or Licensee (where the Infringing Materials are the Licensee Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
THIS SECTION 13 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Company may, without the consent of Licensee, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
Entire Agreement. This Agreement, any exhibits and amendments thereto, and any BSOs constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
Restricted Rights. If Licensee is an agency, department or entity of the United States Government (“Government”), Licensee agrees, that (i) use, reproduction, release, modification or disclosure of the Software, or any part thereof, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies, (ii) the Software is a commercial product, which was developed at private expense, and (iii) use of the Software by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
Import and Export Requirements. Licensee acknowledges and agrees that the Licensed Materials are subject to export control laws and regulations. Licensee may not download or otherwise export or re-export the Licensed Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Licensed Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Licensee hereby agrees to the foregoing and warrants that Licensee is not located in, or under the control of, or a national or resident of any such country or on any such list.
Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of Santa Clara County, California.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section. Notice may not be given by email.
Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
Last updated: Sep 14, 2015