This Subscription Agreement (“Agreement”) is a legal
document that binds registered users (“Users”) to certain obligations. You
should read this Agreement carefully before accepting its terms. You
understand and agree that the software application services (“Services” or
Software Application Services”) are provided to Users exclusively under
this Agreement by JumpSeat, LLC (“JumpSeat”). By clicking
the “Agree” button, you are stating (i) that you are 18 years or older,
(ii) that you have read and understand this Agreement, (iii) EACH PERSON
ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER LEGAL
ENTITY, REPRESENTS AND WARRANTS THAT you have full legal authority to bind
your employer, or the applicable entity, to these terms and conditions,
(iv) you agree, on behalf of the party that you represents, to this
Agreement (v) that you agree to be bound by the terms in effect and as
updated by Vendor from time to time. (iii) he/she agrees, on behalf of the
party that he/she represents, to this Agreement. WITH RESPECT TO
SUBSCRIBER, THE TERMS “YOU” OR “YOUR” REFERS TO AND BINDS SUCH ENTITY.
The Agreement is deemed to include the Terms and Conditions below and any
other terms expressly referenced herein, all of which are expressly
incorporated in the Agreement.
1.
DEFINITIONS
1.1 “Affiliates” means any person or entity directly or
indirectly Controlling, Controlled by, or under common Control with a
party, where “Control” means the legal power to direct or
cause the direction of the general management of the company, partnership,
or other legal entity.
1.2 “Ancillary Software” means software
licensed by JumpSeat to Subscriber that is deployed on machines operated by
or for Subscriber to facilitate operation of the Subscription Service or
interoperation of the Subscription Service with other software, hardware,
or services. Ancillary Software may include code that is licensed under
third-party license agreements, including open source made available or
provided with the Ancillary Software.
1.3 “Business Hours” means 8 AM – 6 PM
(Eastern Standard Time) Monday through Friday, excluding federal holidays.
1.4 “Claim” means any third-party suit, claim, action, or
demand.
1.5 “Confidential Information” means: ( a) JumpSeat Core Technology (which is
Confidential Information of JumpSeat); (b) Subscriber Data
and Subscriber Technology (which is Confidential Information of
Subscriber); and, (c) any information of a party that is
disclosed in writing or orally and is designated as Confidential
or Proprietary at time of disclosure (and, for oral disclosures,
summarized in writing within 30 days of initial disclosure and delivered in
written summary form to the receiving party), or that, due to the nature of
the information or circumstances of disclosure, receiving party would
understand it to be disclosing party’s confidential information; and (d) the specific terms of this Agreement, and any
amendment or attachment to any of these, between the parties (which will be deemed Confidential Information of both
parties). Confidential Information excludes any information that: (i) is or becomes
generally known to the public through no fault or breach by receiving
party; (ii) was already
rightfully in receiving party’s possession, without restriction on use or
disclosure, when receiving party received it; ( iii) is independently developed by
receiving party without use of disclosing party’s Confidential Information;
or (iv) was or is
rightfully obtained by receiving party, without restriction on use or
disclosure, from a third party not under a duty of confidentiality to
disclosing party.
1.6 “Subscriber Data” means electronic data uploaded by or
for Subscriber or Subscriber’s agents, employees, or contractors, and
processed in the Subscription Service, excluding JumpSeat Core Technology.
1.7 “Subscriber Technology” means software, methodologies,
templates, business processes, documentation, or other material originally
authored, invented, or otherwise created by Subscriber (or on Subscriber’s
behalf, other than by JumpSeat or at JumpSeat’s direction) for use with the
Subscription Service, excluding JumpSeat Core Technology.
1.8 “Data Controller” means the natural or legal person,
public authority, agency, or other body which, alone or jointly with
others, determines the purposes and means of Processing of Personal Data.
For purposes of this Agreement, Data Controller is Subscriber and, where
applicable, its Affiliates either permitted by Subscriber to submit
Personal Data to the Subscription Service or whose Personal Data is
Processed in the Subscription Service.
1.9 “Data Processor” means the natural or legal person,
public authority, agency, or other body which Processes Personal Data on
behalf of the Data Controller. For purposes of this Agreement, Data
Processor is the Subscriber entity that is performing Data Processing.
1.10 “Data Protection Laws” means all applicable laws and
regulations regarding the Processing of Personal Data and includes GDPR.
1.11 “Data Subject” means an identified or identifiable
natural person.
1.12 “Deliverable” means anything that is created by or on
behalf of JumpSeat for Subscriber in the performance of Professional
Services.
1.13 “Documentation” means the then-current JumpSeat
product documentation relating to the operation and use of the Subscription
Service or Ancillary Software published by JumpSeat. Documentation includes
technical program or interface documentation, user manuals, operating
instructions, and release notes.
1.14 “Error” means a material failure of the Platform to
function in accordance with its Documentation.
1.15 “GDPR” means the European Union’s General Data
Protection Regulation (2016/679).
1.16 “Instructions” means Data
Controller’s documented data Processing instructions issued to Data
Processor in compliance with this Agreement.
1.17 “Intellectual Property Rights” means all intellectual
property or other proprietary rights worldwide, including patents,
copyrights, trademarks, moral rights, trade secrets, and any other
intellectual or industrial property, including registrations, applications,
renewals, and extensions of such rights.
1.18 “Law” means any applicable law, rule, statute,
decree, decision, order, regulation, judgment, code, and requirement of any
government authority (federal, state, local, or international) having
jurisdiction.
1.19 “JumpSeat Core Technology” means:(a ) the Subscription Service, Ancillary Software,
Documentation, and technology and methodologies (including products,
software tools, hardware designs, algorithms, templates, software (in
source and object forms), architecture, class libraries, objects, and
documentation) created by or for, or licensed to, JumpSeat; and(b ) updates, upgrades, improvements, configurations,
extensions, and derivative works of the foregoing and related technical or
end user documentation or manuals.
1.20 “JumpSeat Products” means, collectively, the
Subscription Service, Ancillary Software, Documentation, and Deliverables.
1.21 “Newly Created IP” means Intellectual Property Rights
in the inventions or works of authorship that are made by JumpSeat
specifically for Subscriber in the course of performing Professional
Services for Subscriber that are expressly identified as “Newly Created IP”
in an SOW, excluding JumpSeat Core Technology.
1.22 “User Account” means a the online account established
between by User with specifying the JumpSeat subscriptions that Subscriber
has purchased, along with the applicable fees, term and scope of the
authorized use thereof, subject to this JumpSeat Agreement.
1.23 “Personal Data” means any information relating to a
Data Subject uploaded by or for Subscriber or Subscriber’s agents,
employees, or contractors to the Subscription Service as Subscriber Data.
1.24 “Platform” means the JumpSeat internet-based software
(and accompanying Documentation, if any); and any Updates or Upgrades.
1.25 “Process” or “Processing” means any
operation or set of operations which is performed upon Personal Data,
whether or not by automated means, such as collection, recording,
organization, structuring, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination, or otherwise
making available, alignment or combination, restriction, erasure or
destruction.
1.26 “Product Overview” means JumpSeat’s published
description of its products and their functionalities, solely to the extent
attached to or expressly referenced in the Documentation.
1.27 “Professional Services” means any consulting,
development, implementation or educational services provided by or on
behalf of JumpSeat pursuant to an agreed SOW or Service Description.
1.28 “SOW” means a statement of work that describes scoped
Professional Services.
1.29 “Subscription Service” means the JumpSeat
software-as-a-service offering ordered by Subscriber under a User Account.
1.30 “Sub-Processor” means any legal person or entity
engaged in the Processing of Personal Data by Data Processor. For the
avoidance of doubt, JumpSeat’s colocation datacenter facilities are not
Sub-Processors under this Agreement.
1.31 “Subscription Term” means the period of authorized
access to and use of the Subscription Service, as set forth in a User
Account.
1.32 “Upgrades” are new releases applied by JumpSeat to
Subscriber’s instances of the Subscription Service at no additional fee
during the Subscription Term. “Updates” are JumpSeat’s
releases (including patches and hotfixes) of the Subscription Service
applied by JumpSeat to Subscriber’s instances of the Subscription Service
at no additional fee during the Subscription Term that provide problem
fixes or other changes, but do not generally include new functionality.
JumpSeat has the discretion to provide new functionality either: (a) as an Upgrade, or (b) as different
software or service for a separate fee. JumpSeat determines whether and
when to develop, release, and apply any Upgrade or Update to Subscriber’s
instances of the Subscription Service.
2.
ACCESS AND USE RIGHTS; RESTRICTIONS; PROVISION OF PROFESSIONAL
SERVICES
2.1 ACCESS AND USE RIGHTS. For each Subscription Term, JumpSeat
grants the access and use rights set forth in this Section 2 for the
JumpSeat Core Technology for the period.
2.1.1.Subscription Service. Subject
to the terms of this Agreement, JumpSeat authorizes Subscriber to access,
execute, display, perform and otherwise use the Platform and Subscription
Service during the Subscription Term stated, solely for Subscriber’s
internal business purposes in accordance with the Documentation. Subscriber
will not otherwise access or use the Subscription Service in a manner that
exceeds Subscriber’s authorized access and use rights as set forth in this
Agreement.
2.1.2.ANCILLARY SOFTWARE. JumpSeat grants Subscriber a limited,
personal, worldwide, non-sublicensable, non-transferable (except as set
forth in Section 16.1 (Assignment)), non-exclusive, royalty-free license
during the Subscription Term to install and execute Ancillary Software on
machines operated by or for Subscriber, solely to facilitate Subscriber’s
authorized access to and use of the Subscription Service.
2.1.3.RESTRICTIONS. With respect to the JumpSeat Core Technology,
Subscriber will not (and will not permit others to):(a ) use it in excess of contractual usage limits (as set
forth in the User Account), or in a manner that circumvents usage limits or
technological access control measures; ( b) license, sub-license, sell, re-sell,
rent, lease, transfer, distribute, time share, or otherwise make any of it
available for access by third-parties, except as may otherwise be expressly
stated in the User Account; (c) access it
for the purpose of developing or operating products or services for
third-parties in competition with the JumpSeat Core Technology;(d) disassemble, reverse engineer, or decompile it; (e) copy, create derivative works based on, or otherwise
modify it, except as may be otherwise expressly stated in this Agreement; (f) remove or modify a copyright or other proprietary
rights notice in it; (g) use it to reproduce, distribute,
display, transmit, or use material protected by copyright or other
Intellectual Property Right (including the rights of publicity) without
first obtaining permission of the owner; (h) use it to
create, use, send, store, or run viruses or other harmful computer code,
files, scripts, agents, or other programs, or otherwise engage in a
malicious act or disrupt its security, integrity, or operation; (i) access or disable any JumpSeat or third-party data,
software, or network (other than Subscriber’s instance of the Subscription
Service under this Agreement); or (j) use Platform to
store, process or display Personal Data, Personally Identifiable
Information or similar information subject to GDPR or Data Protection Laws.
Before Subscriber engages in any of the foregoing acts that it believes it
may be entitled to, it will provide JumpSeat with 30-days’ prior notice,
and reasonably requested information to allow JumpSeat to assess
Subscriber’s claim. JumpSeat may, in its discretion, provide alternatives
that reduce adverse impacts on JumpSeat’s Intellectual Property Rights or
other rights.
3.
ORDERING
3.1 FREE TRIAL. Subscriptions to the Services may begin with a free
trial period, solely determined in JumpSeat’s discretion, during which you
can try out the Services for 90 days from the date you register (“Free
Trial Period”). While you may not be required to enter your billing
information in order to sign up for the Free Trial Period. If you do so,
you will not be charged until the Free Trial Period ends. If you have not
provided billing information by the time the Free Trial Period ends, you
will lose access to the Services. There will be a 30 day grace period
during which we will maintain your information. You will have the option of
entering billing information and subscribing during this grace period. If
you do not do so your account will be cancelled at the end of the grace
period.
You may cancel your Subscription at any time during the Free Trial Period
by following the steps described in section
(“Account Cancellation”). Upon cancelling your account, you will
immediately lose all access to the Services and any data or information
stored within your account (see Section 15.1 (“Term and Termination”) for
additional details).
JumpSeat reserves the right to modify, cancel and/or limit the Free Trial
Period without notice at any time.
3.2 ORDERS
. Subscriber shall order and purchase the Subscription Service pursuant to
pricing, payment and other commercial terms reflected in the Account you
establish to access the Services. For each order, subsequent or additional
orders for JumpSeat products or services may be placed by Subscriber
through your JumpSeat Account.
3.3 USE VERIFICATION
. JumpSeat may remotely review Subscriber’s use of the Subscription
Service. If JumpSeat determines that Subscriber has exceeded its permitted
access and use rights to the Subscription Service, JumpSeat will notify
Subscriber and within 30 days thereafter Subscriber shall either: (a) disable any unpermitted use, or (b)
purchase additional subscription rights commensurate with Subscriber’s
actual use.
4.
INTELLECTUAL PROPERTY
4.1 JUMPSEAT OWNERSHIP
. As between the parties, JumpSeat and its licensors
exclusively own all right, title, and interest in and to all Intellectual
Property Rights in the JumpSeat Core Technology, notwithstanding
anything in the User Account or any Subscriber purchase orders purportedly
to the contrary. Except for the access and use rights, and licenses
expressly granted in Section 2 (Access and Use Rights; Restrictions;
Provision of Professional Services) of this Agreement, JumpSeat, on behalf
of itself and its licensors, reserves all rights in the JumpSeat Core
Technology and does not grant Subscriber any rights (express, implied, by
estoppel, through exhaustion, or otherwise). Any JumpSeat Core Technology
delivered to Subscriber or to which Subscriber is given access shall not be
deemed to have been sold, even if, for convenience, JumpSeat makes
reference to words such as “sale” or “purchase” in the applicable User
Account or other documents.
4.2 SUBSCRIBER OWNERSHIP
. As between the parties, Subscriber and its licensors will retain all
right, title, and interest in and to all Intellectual Property Rights in
Subscriber Data and Subscriber Technology. Subscriber hereby grants to
JumpSeat a royalty-free, fully-paid, non-exclusive, non-transferrable
(except as set forth in Section 16.1 (Assignment)), worldwide, right to use
Subscriber Data and Subscriber Technology solely to provide and support the JumpSeat Products.
4.3 FEEDBACK
. JumpSeat encourages Subscriber to provide suggestions, proposals, ideas,
recommendations, or other feedback regarding improvements to the JumpSeat
Products (collectively, “Feedback”). If Subscriber
provides such Feedback, Subscriber grants to JumpSeat a royalty-free, fully
paid, sub-licensable, transferable (notwithstanding Section 16.1
(Assignment)), non-exclusive, irrevocable, perpetual, worldwide right and
license to use, license, and commercialize Feedback (including by
incorporation of such Feedback into JumpSeat Core Technology) without
restriction.
5.
UPGRADES
. JumpSeat shall use reasonable efforts to give Subscriber 30 days’ prior
notice of any Upgrade to the Subscription Service. JumpSeat shall use
reasonable efforts to give Subscriber 10 days’ prior notice of any Update.
Notwithstanding the foregoing, JumpSeat may provide Subscriber with a
shorter or no notice period of an Upgrade or Update if, in the reasonable
judgment of JumpSeat it is necessary to: (i) maintain the
availability, security, or performance of the Subscription Service; (ii) comply with Law; or (iii) avoid
infringement or misappropriation of any third-party Intellectual Property
Right. JumpSeat is not responsible for defects on any instance of the
Subscription Service not in conformance with this Agreement.
6.
DATA SECURITY, CERTIFICATIONS, AUDITS
6.1 JumpSeat will implement and maintain commercially reasonable security
procedures and practices appropriate to information technology service
providers designed to protect Subscriber Data from unauthorized access,
destruction, use, modification, or disclosure.
6.2 CERTIFICATIONS AND ATTESTATIONS. JumpSeat shall establish and
maintain sufficient controls to meet the objectives stated in SOC 2 Type 2
(or equivalent standards) (collectively, the “Standards”)
for the information security management system supporting the Subscription
Service. At least once per calendar year, JumpSeat shall obtain an
assessment against such Standards by an independent third-party auditor.
6.3 SUBSCRIBER MONITORING RIGHTS.
6.3.1.REMOTE SELF ASSESSMENTS. JumpSeat shall
enable remote self-serve assessments of its Security Program by granting
Subscriber, at all times and at no additional costs, access to any JumpSeat
self-access documentation portal. The information available will include
documentation evidencing JumpSeat’s policies, procedures and security
measures, as well as copies of the certifications and attestations listed
in Section 6.3.2 (Audit) below.
6.3.2.AUDIT. No more than once per year and upon written request by
Subscriber, Subscriber shall have the right directly or through its
representative(s) (provided however, that such representative(s) shall
enter into written obligations of confidentiality directly with JumpSeat),
to access all reasonable and industry recognized documentation evidencing
JumpSeat’s policies and procedures governing the security of Subscriber
Data (“Audit”). Such Audit shall include a written summary
report of any assessment performed by an independent third-party of
JumpSeat’s information security management system supporting the
Subscription Service against the objectives stated in SOC 2 Type 1 (or
equivalent or successor attestations). JumpSeat reserves the right to
refuse to provide Subscriber (or its representatives) with any information
which would pose a security risk to JumpSeat or its Subscribers, or which
JumpSeat is prohibited to provide or disclose under Law or contractual
obligation.
7.
WARRANTIES; DISCLAIMER OF WARRANTIES
7.1 LIMITED SUBSCRIPTION SERVICE WARRANTY
. JumpSeat warrants that, during the Subscription Term, Subscriber’s
production instance of the Subscription Service will materially conform to
the Product Overview. To submit a warranty claim under this Section 7.1,
Subscriber will submit a support
request to resolve the non-conformity. During Business Hours, JumpSeat will
respond to Error reports submitted by authorized Administrators via our
Error request queue. When reporting an Error, Subscriber will describe the
Error in reasonable detail, indicate the severity of the Error (e.g., the
Platform is unusable by all users, the Platform is usable but critical
features are inoperative, the Platform is usable with a work-around for
critical features, or non-critical features are inoperative), and specify
any error message(s) observed. JumpSeat will use commercially reasonable
efforts to respond to Subscriber’s Error reports. JumpSeat will use
commercially reasonable efforts to correct, within a commercially
reasonable period of time, any substantiated Error in the unaltered
Platform reported by Subscriber as specified above. JumpSeat will determine
the form of any Error correction, which may include, by way of example and
not limitation, an individual patch, a work around, a maintenance release
provided in the normal course of JumpSeat’s maintenance release schedule,
or a correction to erroneous documentation. If the Error persists without
relief more than 30 days after notice of a warranty claim provided to
JumpSeat under this Section 7.1, then Subscriber may terminate the affected
Subscription Service, and submit to a claim for refund to Subscriber for
any prepaid subscription fees covering that part of the applicable
Subscription Term for the affected Subscription Service remaining after the
effective date of termination. Notwithstanding the foregoing, this warranty
will not apply to any Error due to a modification of or defect in the
Subscription Service that is made or caused by any person other than
JumpSeat or a person acting at JumpSeat’s direction. This Section 7.1
sets forth Subscriber’s exclusive rights and remedies (and JumpSeat’s
sole liability) in connection with this warranty.
7.2 DISCLAIMER OF WARRANTIES.
Except for the warranties expressly stated in this Section 7, to the
maximum extent allowed by Law, JumpSeat disclaims
all warranties of any kind (express, implied, statutory, or otherwise,
oral or written, including warranties of merchantability, accuracy,
title, non-infringement, or fitness for a particular purpose, and any
warranties arising from usage of trade, course of dealing, or course of
performance). Without limiting the foregoing, JumpSeat specifically
does not warrant that the JumpSeat Products will meet the requirements
of Subscriber or others or will be accurate or operate without
interruption or error or that the Platform or the Server(s) that make
the Platform available are free of viruses or other harmful components.
Subscriber acknowledges that it has not relied on any promise,
warranty, or representation not expressly set forth in this Agreement
with respect to JumpSeat Products or JumpSeat Professional Services. The JumpSeat Products are provided to
Subscriber strictly on an “AS IS” and “AS AVAILABLE” basis.
8.
FEES; PAYMENT
8.1 FEES. In consideration for the access rights granted by JumpSeat
to Subscriber in Section 2 (Access Rights and Restrictions), Subscriber
shall pay to JumpSeat a Monthly or Annual Fee, as set forth in the
Subscription Schedule under the User Account.
8.2 SUSPENSION FOR NON PAYMENT. The Subscriber acknowledges that the
non-payment of any Fees due and owing will, at JumpSeat’s discretion,
result in the suspension of access to the Platform for the Subscriber.
However, if the Subscriber remedies the non-payment by making a payment in
full of all fees due and owing, then JumpSeat, absent termination, may
reinstate access for the remainder of the Term.
8.3 PAYMENT. Subscriber agrees to pay all Fees and other charges for
the Platform and Services it obtains on the schedule set forth in
Subscription Schedule under the User Account.
JumpSeat may charge a late fee of 1.5% per month or the maximum amount
allowed by law, whichever is greater, on any balance remaining unpaid
for more than thirty (30) days.
Prices are exclusive of all applicable taxes. Subscriber agrees to pay all
taxes (including, but not limited to sales, use, excise and value-added
taxes), tariffs, duties, customs fees or similar charges imposed or levied
upon the Platform and Services it acquires pursuant to this Agreement, with
the exception of taxes on JumpSeat’s net income and employment related
taxes incurred by JumpSeat.
9.
CONFIDENTIAL INFORMATION
9.1 CONFIDENTIALITY OBLIGATIONS
. The recipient of Confidential Information will:(a ) at all times protect it from unauthorized disclosure
with the same degree of care that it uses to protect its own confidential
information, and in no event use less than reasonable care; and (b) not use it except to
the extent necessary to exercise rights or fulfill obligations this
Agreement. Each party will limit the disclosure of the other party’s
Confidential Information to those of its employees and contractors and the
employees and contractors of its Affiliates with a need to access such
Confidential Information for a party’s exercise of its rights and
obligations under this Agreement, and then only to employees and
contractors subject to binding disclosure and use restrictions at least as
protective as those in this Agreement. Each party’s obligations under this
Section 9 will remain in effect during, and for three years after
termination of, the Subscription Term. Receiving party will, at disclosing
party’s request, return all originals, copies, reproductions, and summaries
of Confidential Information and other tangible materials and devices
provided to receiving party as Confidential Information, or at disclosing
party’s option, certify destruction of the same. Provisions for return of
Subscriber Data are set forth in Section 15.2 (Return of Subscriber Data).
9.2 THIRD PARTY REQUESTS. This Agreement will not be construed to
prevent receiving party from disclosing the disclosing party’s Confidential
Information to a court, or governmental body pursuant to a valid court
order, Law, subpoena, or regulation, provided that the receiving party: (a) gives prompt notice (or the maximum notice permitted
under Law) before making the disclosure, unless prohibited by Law; (b) provides reasonable assistance to disclosing party in
any lawful efforts by disclosing party to resist or limit the disclosure of
such Confidential Information; and (c) discloses only that
portion of disclosing party’s Confidential Information that is legally
required to be disclosed.
In addition, receiving party will cooperate and assist disclosing
party, at disclosing party’s cost, in relation to any such request and
any response to any such communication.
10.
INDEMNIFICATION
10.1 BY JUMPSEAT
.
10.1.1. JUMPSEAT OBLIGATION
. Subject to the limitations in this Section 10, JumpSeat will:(a ) defend Subscriber, and its and their officers,
directors, and employees against any Claim: (i) to the extent alleging that any JumpSeat Core Technology accessed or used in
accordance with this Agreement infringes any third-party patent, copyright,
or trademark, or misappropriates any third-party trade secret; or(ii ) to the extent alleging that JumpSeat’s personnel when
onsite at Subscriber’s premises caused death, bodily harm, or damage to
tangible personal property due to their negligence or willful misconduct;
and ( b) pay any settlement amount or any
court-ordered award of damages
, under the forgoing subsections (a)(i) and (ii) to the extent arising
from such Claim
.
10.1.2. MITIGATION
. To the extent any Claim alleges any part of the JumpSeat Core Technology
infringes any third-party patent, copyright, or trademark, or
misappropriates any third-party trade secret, JumpSeat may:(a) contest the Claim; ( b) obtain permission from the claimant
for Subscriber’s continued use of its instance of the Subscription Service
or any applicable JumpSeat Core Technology; ( c) avoid such Claim by replacing or
modifying Subscriber’s access to and use of its instance of the
Subscription Service or any applicable JumpSeat Core Technology as long as
JumpSeat provides a substantially similar Subscription Service; or, if
JumpSeat determines the foregoing (a), (b), and (c) are not commercially
practicable, then (d) terminate Subscriber’s access to and use of the
affected Subscription Service on 60-days’ prior notice, whereupon
Subscriber may submit a claim for a refund of any prepaid subscription fees
covering any prepaid subscription fees covering that part of the applicable
Subscription Term for such Subscription Service remaining after the
effective date of termination.
10.1.3. LIMITATIONS. Notwithstanding the above, JumpSeat will have
no obligation or liability for any Claim under Section 10.1.1(a)(i) to the
extent arising in whole or in part from: ( a) any access to or use of any JumpSeat
Core Technology not expressly authorized under this Agreement, to the
extent the Claim would have been avoided without such unauthorized access
or use; (b) Subscriber
Data or Subscriber Technology; or (c) access to or use of the JumpSeat Core Technology:(i) in violation of Law;( ii) after termination under Section
10.1.2(d); (iii) as
modified to Subscriber’s specifications or by anyone other than JumpSeat or
its contractors, if the Claim would have been avoided but for such
modifications; or (iv)
combined with anything not provided by JumpSeat, if the Claim would have
been avoided but for such combination.
10.2 DISCLAIMER
. JumpSeat and JumpSeat
Affiliates, and its and their officers, directors, and employees shall not
be responsible for any Claim alleging that Subscriber Data,
Subscriber Technology, or a modification to any JumpSeat Core Technology
made to Subscriber’s specifications or otherwise made by or on behalf of
Subscriber, by any person other than JumpSeat or a person acting at
JumpSeat’s direction, JumpSeat infringes any patent, copyright, or
trademark, misappropriates any third-party trade secret, or violates any
third-party privacy rights.
10.3 PROCESS. The obligations of JumpSeat under this Section 10 are
conditioned on Subscriber (a) notifying JumpSeat promptly
in writing of any actual or threatened Claim, (b)
Subscriber cooperating and, at JumpSeat’s reasonable request and expense,
assisting in such defense.
Neither party will stipulate, acknowledge, or admit fault or liability
on the other’s part without the other’s prior, written consent.
JumpSeat will not publicize any settlement without the Subscriber’s
prior, written consent.
To the extent the parties perform as required, this Section
10
states each party’s entire liability and the other party’s exclusive
remedy for third-party claims and third-party actions.
10.4 BY SUBSCRIBER.
10.4.1. Subscriber will (a ) defend JumpSeat, and its and their officers, directors,
and employees against any Claim: (i ) to the extent alleging that any Subscriber Technology or
Subscriber Data accessed or used in accordance with this Agreement
infringes any third-party patent, copyright, or trademark, or
misappropriates any third-party trade secret; (ii) for any
breach of Subscribers obligations under 2.1.3 (Restrictions).
11.
LIMITED LIABILITY
To the extent permitted by Law, JumpSeat’s total, cumulative liability
arising out of or related to this Agreement and the products and services
provided under it, whether based on contract, tort (including negligence),
or any other legal or equitable theory, will be limited to the amounts paid
by Subscriber for use of the JumpSeat Products giving rise to the claim
during the 12-month period preceding the first event giving rise to
liability. The existence of more than one claim will not enlarge this
limit.
12.
EXCLUDED DAMAGES
To the extent permitted by Law, neither JumpSeat nor Subscriber will be
liable to the other or any third party for lost profits (direct or
indirect) or loss of use or data or for any incidental, other
consequential, punitive, special, or exemplary damages (including damage to
business, reputation, or goodwill), or indirect damages of any type however
caused, whether by breach of warranty, breach of contract, in tort
(including negligence), or any other legal or equitable cause of action,
even if such party has been advised of such damages in advance or if such
damages were foreseeable. The foregoing exclusions shall not apply to: (a)
payments to a third party arising from a party’s obligations under Section
10 (Indemnification); and (b) infringement by a party of the other party’s
Intellectual Property Rights.
13.
GROSS NEGLIGENCE; WILLFUL MISCONDUCT
As provided by Law, nothing herein shall be intended to limit a party’s
liability in an action in tort, separate and distinct from a cause of
action for breach of this Agreement, for the party’s gross negligence or
willful misconduct.
14.
RELIANCE ON LIMITATIONS
THE PARTIES ACKNOWLEDGE THAT JUMPSEAT HAS SET ITS PRICES AND ENTERED INTO
THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE
DISCLAIMERS OF WARRANTIES AND EXCLUDED DAMAGES SET FORTH HEREIN, AND THAT
THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE
PARTIES AGREE THAT THE LIMITATION OF LIABILITY, EXCLUSION OF DAMAGES AND
DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF
FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
15.
TERM AND TERMINATION
15.1 TERMINATION. The Subscription Term for the Subscription Service
shall begin on the Effective Date stated in the User Account and continue
until the expiration date indicated in the User Account. Either party may
terminate an Account on notice if the other party materially breaches this
Agreement for the affected service and does not cure the breach within 30
days after receiving notice of the breach from the non-breaching party. In
the event Subscriber or JumpSeat has reason to believe the other is in
breach of any right or obligation under these Terms of Service, the
non-breaching party shall immediately notify the breaching party, and
provide the breaching party 30 days to cure the breach prior to
termination. You are solely responsible for properly cancelling your
account. An email or phone request to cancel your account is not considered
cancellation. You can cancel your account at any time by clicking on the
Account link in the global navigation bar at the top of the screen. The
Account screen provides a simple no-questions-asked cancellation link. All
of your content will be immediately inaccessible from the Service upon
cancellation. Within 30 days, all of this content will be permanently
deleted from all backups and logs. This information can not be recovered
once it has been permanently deleted.
15.1.1. EFFECT OF TERMINATION OF SUBSCRIPTION SERVICE. On
termination or expiration of the Subscription Service, Subscriber will stop
accessing and using, and JumpSeat will stop providing, the Subscription
Service and all related rights granted to Subscriber in this Agreement will
terminate immediately, automatically, and without notice. Subscriber,
within 30 days after the effective date of
termination by Subscriber for JumpSeat’s breach, submit a claim for refund
for any prepaid fees paid covering that part of the Subscription Term for
the affected Subscription Service, if any, remaining after the effective
date of termination. Within 30 days after the effective date of termination
by JumpSeat for Subscriber’s breach, Subscriber shall pay all remaining
amounts, if any, for the Subscription Term applicable to the Subscription
Service covering the remainder of the Subscription Term regardless of the
due dates specified in an applicable User Account between JumpSeat and
Subscriber.
15.2 RETURN OF SUBSCRIBER DATA
. After termination or expiration of the Subscription Service, upon
Subscriber’s written request, JumpSeat will provide any Subscriber Data in
the Subscription Service to Subscriber in JumpSeat’s standard database
export format at no additional charge. Subscriber must submit such request
to JumpSeat within 30 days after termination or expiration of the
Subscription Service. JumpSeat is not obligated to maintain or provide any
Subscriber Data after such 30-day period and will, unless legally
prohibited, delete all Subscriber Data in its systems or otherwise in its
possession or under its control, and delete Subscriber’s instances of the
Subscription Service.
15.3 SURVIVAL. Sections 2.1.23 (Restrictions), 4 (Intellectual
Property), 7 (Warranties; Disclaimer of Warranties) (solely in accordance
with its terms), 9 (Confidential Information) through 14 (Reliance on
Limitations), 15 (Term and Termination) (solely in accordance with its
terms), and 16 (General Provisions), together with any other terms required
for their construction or enforcement, will survive termination or
expiration.
16.
GENERAL PROVISIONS
16.1 ASSIGNMENT
. Neither party may assign or novate its rights or obligations under this
Agreement, by operation of law or otherwise (any of the foregoing, “ Assign”), without the other party’s prior written consent.
Notwithstanding the foregoing, on notice and without the other’s consent: (a) either party may in
connection with a merger, reorganization, or sale of all or substantially
all of such party’s assets or equity, Assign this Agreement in its entirety
to such party’s successor; and ( b) JumpSeat may Assign this Agreement in
its entirety to any JumpSeat Affiliate. Any attempted or purported
Assignment in violation of this Section 16.1 will be null and void. Subject
to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors, and permitted assigns.
16.2 COMPLIANCE WITH LAWS
. JumpSeat will comply with all Laws generally applicable to its provision of the JumpSeat Products, including those applicable to
privacy and security of personal information, when applicable, (including
mandatory trans-border data transfers and mandatory data breach
notification requirements), but excluding Laws specifically applicable to
Subscriber and its industry not generally applicable to information
technology service providers regardless of industry. Subscriber will comply
with all Laws applicable to its use of the JumpSeat Products, including
those applicable to collection and processing of Subscriber Data, to
include, as applicable, GDPR, in JumpSeat systems through the Subscription
Service. Subscriber agrees to provide any required disclosures to and
obtain any required consents for the transfer of Subscriber Data to
JumpSeat.
16.3 EXPORT COMPLIANCE. Each party will comply with local and
foreign export control Laws, including U.S. export control Laws. Subscriber
acknowledges that the JumpSeat Products are subject to U.S. Export
Administration Regulations (“EAR”). Without limiting the
foregoing: (a)
Subscriber shall not be located in, and will not use any JumpSeat Products
from, any country subject to U.S. export restrictions (currently including
Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Subscriber shall not
use the JumpSeat Products in the design, development, or production of
nuclear, chemical, or biological weapons, or rocket systems, space launch
vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Subscriber shall not
be prohibited from participating in U.S. export transactions by any federal
agency of the U.S. Government. In addition, Subscriber is responsible for
complying with any local Laws that may impact Subscriber’s right to import,
export, or use JumpSeat Products.
16.4 NOTICE
. Except as otherwise provided in this Agreement, all notices will be in
writing and deemed given on: (a) personal delivery;(b ) when received by the addressee if sent by a recognized
overnight courier (receipt requested); (c) the third business day after mailing; or (d) the first business
day after sending by email with confirmation of receipt, except that email
will not be sufficient for notices regarding a Claim or alleged breach.
Notices will be sent as set forth on the first page of this Agreement or as
subsequently updated in writing.
16.5 FORCE MAJEURE. JumpSeat is not, and may not be construed to be,
in breach of this Agreement for any failure or delay in fulfilling or
performing the Subscription, when and to the extent such failure or delay
is caused by or results from acts beyond JumpSeat’s reasonable control,
including: strikes, lock-outs, or other industrial disputes; trespass,
sabotage, theft or other criminal acts export bans, sanctions, war,
terrorism, riot, pandemics, civil unrest, or government action; failure of
Internet connectivity or backbone or other telecommunications failures, in
each case outside of JumpSeat’s local network; breakdown of plant or
machinery; nuclear, chemical, or biological contamination; fire, flood,
natural disaster, extreme adverse weather, or other acts of God (each a “ Force Majeure Event”). JumpSeat will use reasonable
efforts to mitigate the effects of such Force Majeure Event.
16.6 WAIVER AND AMENDMENT. Failure by JumpSeat to enforce any part
of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. A waiver of any right is
effective only if in a writing signed by an authorized representative of
the waiving party. Any amendment or modification to this Agreement must be
in writing and signed by authorized representatives of both parties.
16.7 SEVERABILITY. If any term of this Agreement is held invalid,
unenforceable, or void by a court of competent jurisdiction, such term will
be enforced to the maximum extent permissible, such holding will not affect
the remaining terms, and the invalid, unenforceable, or void term will be
deemed amended or replaced by a valid, legal, and enforceable term that
matches the intent of the original language as closely as possible.
16.8 RELATIONSHIP. The parties are independent contractors. Nothing
in this Agreement will be construed to create a partnership, joint venture,
agency, or other relationship. Neither party has any right or authority to
assume or create any obligation of any kind, express or implied, in the
other party’s name or on its behalf. No third-party is a third-party
beneficiary of, or liable under, this Agreement, and no third-party is
responsible for any obligations or liability arising out of Subscriber’s
use of the JumpSeat.
16.9 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement will be
governed by the Laws of the Commonwealth of Virginia, without regard to its
conflict of laws principles, and the parties irrevocably consent to the
exclusive jurisdiction of, and venue in, any federal or state court of
competent jurisdiction located in Fairfax County, Virginia, for the
purposes of adjudicating any dispute arising out of or related to this
Agreement. Each party expressly consents to service of process by
registered mail. To the extent permitted by Law, choice of law rules and
the United Nations Convention on Contracts for the International Sale of
Goods will not apply. Notwithstanding the foregoing, either party may at
any time seek and obtain appropriate legal or equitable relief in any court
of competent jurisdiction for claims regarding such party’s Intellectual
Property Rights.
16.10 Digital Signature Provisions. User represents and warrants
that the individual electronically agreeing to the terms of this Agreement
is empowered to agree to this Agreement on behalf of User. User further
agrees that by clicking the “AGREE” option below constitutes an electronic
signature as defined by the Electronic Signatures in Global and National
Commerce Act and that the Agreement is completely valid, has legal effect,
is enforceable, and is binding on, and non-refutable by, User.
16.11 EQUITABLE REMEDIES
. The receiving party’s disclosure of Confidential Information except as
provided in this Agreement, or a party’s infringement or misappropriation
of the other party’s Intellectual Property Rights may
result in irreparable injury for which a remedy in money damages may be
inadequate. In the event of such actual or threatened disclosure,
infringement or misappropriation, disclosing party may be entitled to seek
an injunction to prevent the breach or threatened breach without the
necessity of proving irreparable injury or the inadequacy of money damages,
in addition to remedies otherwise available to disclosing party at law or
in equity.
16.12 CONSTRUCTION
. JumpSeat is obligated to provide JumpSeat Products only in the English
language, unless otherwise agreed in writing. The parties have expressly
requested that this Agreement and all related documents be drafted in
English. Section headings are for convenience only and are not to be used
in interpreting this Agreement. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of
or against either party. Lists of examples following “including”, “e.g.”,
“such as”, or “for example” are interpreted to include “without
limitation”, unless qualified by words such as “only” or “solely.” Unless
stated or context requires otherwise: (a) all internal
references are to this Agreement, its parties, and its Exhibits; (b) “days” means calendar days; (c) “may”
means that the applicable party has a right, but not a concomitant duty; (d) all monetary amounts are expressed and, if applicable,
payable, in U.S. dollars; (e) “current” or “currently”
means “as of the Effective Date” but “then-current” means the present time
when the applicable right is exercised or performance rendered or measured;(f) the word “or” will be deemed to be an inclusive “or”; (g) URLs are understood to also refer to successor URLs,
URLs for localized content, and information or resources linked from within
the websites at such URLs; (h) a writing is “signed” when
it has been hand-signed (i.e., with a pen) or electronically signed using
an electronic signature service by duly authorized representatives of both
parties; (i) a party’s choices, elections, and
determinations under this Agreement are in its sole discretion;(j) the singular includes the plural and vice versa; (k) a reference to a document includes any amendment,
replacement, or novation of it; and (m) a reference to a
thing includes a part of that thing (i.e., is interpreted to include “in
whole or in part”).
16.13 ENTIRETY. This Agreement (together with Subscription schedules
in a User Account, Product Overviews, and Product Support Plan all of which
are also deemed incorporated by this reference) is the parties’ entire
agreement regarding its subject matter and supersedes all prior or
contemporaneous oral or written agreements, representations,
understandings, undertakings, negotiations, letters of intent, and
proposals, with respect to such subjects. The terms of this Agreement apply
to the exclusion of any other terms Subscriber seeks to impose or
incorporate, or that may be implied by trade, custom, practice, or course
of dealing. Subscriber acknowledges it has not relied on any statement,
promise, or representation made or given by or on behalf of JumpSeat that
is not expressly stated in this Agreement. Subscriber’s orders are not
contingent, and Subscriber has not relied, on the delivery of any future
functionality regardless of any verbal or written communication about
JumpSeat’s possible future plans.