*Last modified September 1, 2020
By clicking I Accept, you agree to the following terms and conditions on behalf of yourself and your organization (“You” or “Yours”):
“Authorized Users” means (i) Your employees with a need to know, and (ii) third-party consultants or independent contractors engaged by You who have a need to know, and who, prior to obtaining access to the Software, have executed a Jenzabar-approved nondisclosure agreement and whom You have authorized to use the Software in accordance with these terms and conditions.
"Confidential Information” means the non-public information of Jenzabar, Inc. and its affiliates, including the Jenzabar Software (as defined below), and all algorithms, methods, techniques and processes for the Software, all business and financial information, product, sales, marketing or service plans and market research, and all other material or information marked “confidential” or “proprietary” or normally considered to be confidential by a reasonable person.
“Intellectual Property Rights” means all patents, patent rights, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks and related Confidential Information.
“Jenzabar” means Jenzabar, Inc.
“Software” means Jenzabar’s Chatbot Solution.
2. LIMITED LICENSE.
Subject to these terms and conditions, Jenzabar hereby grants to You a non-exclusive, non-transferable, limited temporary license to access and use, and to allow Your Authorized Users, for evaluation purposes only, the Software on a database and/or server specified and controlled by Jenzabar for through December 31, 2020, unless Jenzabar terminates the license earlier in accordance with these terms and conditions. You have no right to use the source code for the Software. You are explicitly prohibited from using the Software for any other purpose and/or permitting any third-party usage of the Software. You are prohibited from copying any Jenzabar Confidential Information or removing or altering any of the Intellectual Property Rights notices embedded in or otherwise provided with the Software.
3. OWNERSHIP AND LICENSE RESTRICTIONS.
Jenzabar has and retains ownership of all right, title and interest in and to the Software. All rights of any kind in the Software which are not expressly granted in these terms and conditions are entirely and exclusively reserved to and by Jenzabar. You are prohibited from causing or permitting the reverse engineering, disassembly, decompilation or modification of the Software in any manner. You are prohibited from using the Software to provide any services to any third party. You may not sell, lease, license, sublicense, rent, or otherwise transfer the Software. You agree not to allow the Software to be accessed or used by any person except Authorized Users. You agree not to make, publish, or otherwise disclose any recordings or screen shots of non-public pages relating to Your access to, or use of, the Software. You agree not to export or re-export any Software, in whole or in part, to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government or any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order. This section will survive the termination of this agreement.
You will not permit access to or disclose Jenzabar’s Confidential Information, except to its authorized employees and contractors who are bound by confidentiality agreements and who need to use or have access to such Confidential Information, as permitted under these terms and conditions. You will use at least the same degree of care in protecting Jenzabar’s Confidential Information as You use to preserve and safeguard Your own valuable proprietary information, but in any event, no less than a reasonable standard of care. If You are required by law to disclose any of Jenzabar’s Confidential Information, then prior to making such disclosure You shall notify Jenzabar and provide Jenzabar with a copy of any public records request, subpoena or court order pertaining to such disclosure. The rights and remedies provided in this section are not exclusive and are in addition to any other rights and remedies provided by law or under these terms and conditions. This section will survive the termination of this agreement.
5. LICENSE EXPIRATION; TERMINATION.
You understand that the license granted above is temporary and is only valid during the period described above unless terminated earlier by Jenzabar. You acknowledge and agree that, immediately upon the expiration or termination of the license, if applicable You will immediately remove and return to Jenzabar all Software and all related documentation that are in Your possession and certify such removal and return to Jenzabar. You agree that because of this, Jenzabar is entitled to seek injunctive relief in an addition to any other remedies it may have if You fail to immediately remove and return the Software and all related documentation as described herein. Jenzabar may terminate the license at any time for any reason or no reason.
6. WARRANTY DISCLAIMER.
THE SOFTWARE and any and all accompanying files, data and materials are provided “as IS” and with no warranties of any kind, whether express or implied, including, without limitation, any warranty of merchantibility or fitness for a particular purpose. Jenzabar does not warrant, guarantee or make any representations regarding the use of, or the results of the use of, THE SOFTWARE. Jenzabar does not warrant that the operation of THE SOFTWARE will be uninterrupted or error-free or that the use of any passwords and/or encryption features will be effective in preventing the unintentional disclosure of information contained in any file. YOU acknowledge that good datA processing procedure dictates that any program must be thoroughly tested with non-critical data before there is any reliance on it, and YOU hereBY assume the entire risk of use of THE SOFTWARE GRANTED by THE EVALUATION license. this disclaimer of warranty constitutes an essential part of THIS AGREEMENT AND tHE EVALUATION license.
You agree to indemnify, defend, and hold harmless Jenzabar, its affiliates, licensors, and agents, and their respective officers, directors, and employees (the “Indemnified Parties”) from any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings arising out of and relating to any claim made or brought against an Indemnified Party by a third party alleging that (a) the collection, transmission, use, and storage of any data provided by You was not authorized, violated applicable law, or was otherwise affected without the proper consents and permissions of those that provided such data, or (b) use of the Software by You or Your Authorized Users in violation of these terms and conditions, infringes the Intellectual Property Rights of, or has otherwise harmed, a third party. Jenzabar agrees to (a) give You prompt written notice of the claim (provided any delay in giving such notice shall not relieve You of Your obligations under this Section 7); (b) give You sole control of the defense and settlement of the claim (provided that the Indemnified Party may be represented, at its sole expense, by an attorney of its own choosing); and (c) provides to You, at Your cost, all reasonable assistance in the settlement and defense of the claim.
8. LIMITATION OF LIABILITY.
JENZABAR SHALL HAVE NO LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL JENZABAR BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, DATA, AND DATA USE, UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION AND THE LIKE, HOWEVER ARISING, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT JENZABAR HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY AND THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Every dispute or claim arising out of or related to these terms and conditions will be settled exclusively under the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (the “AAA”) by an arbitral tribunal composed of three arbitrators, at least one of whom must be an attorney experienced with the subject matter of the dispute, appointed by agreement of the parties in accordance with the Rules. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection will apply to the proceedings. The arbitration proceedings may be commenced by any party by notice to the other party. The arbitration proceedings will take place in Boston, Massachusetts, or such other neutral location mutually agreed by the parties. The parties exclude any right of appeal to any court on the merits of the dispute. The provisions of this section may be enforced in any court having jurisdiction over the award or any of the parties or any of their respective assets, and judgment on the award (including without limitation equitable remedies) granted in any arbitration hereunder may be entered in any such court. Nothing contained in this section will prevent any party from seeking interim measures of protection in the form of pre-award attachment of assets or preliminary or temporary equitable relief. The parties agree that arbitration under this section will be the exclusive method for resolving disputes under this Agreement. The cost of the arbitration will be borne by the losing party, or if a compromise decision is reached, assumed between the parties in proportion to the amount of the claims and the award.
10. AUDIT RIGHTS.
Jenzabar may upon reasonable notice audit your usage of the Software. The audit may be conducted either on-site by Jenzabar’s independent accountants or internal finance and accounting staff, or by telephone or means of a mailed self-audit. This section will survive the termination of this agreement.
11. LIMITED SUPPORT.
During the term of this agreement, Jenzabar will provide limited support services to You pursuant to Jenzabar’s policies and procedures for supporting software licensed for evaluation purposes; such policies and procedures as (i) Jenzabar may in its sole discretion deem appropriate and (ii) Jenzabar may adopt, implement, alter or change, from time to time, with or without notice.
12.1 Notices. All notices will be in writing and served by machine-confirmed facsimile, overnight delivery, personal service or by certified or registered mail, return receipt requested, and will be deemed to have been given or received on the earlier of actual receipt or, if mailed, on the 5th day after it is properly addressed to the party to be notified, certified or registered with return receipt requested, and properly stamped, sealed and deposited in the U.S. mail. Notices from one party to the other will be sent to the respective address currently on file with such party. Either party may change its address for notices by giving notice of the new address to the other party. Notices to Jenzabar will be sent to the attention of Jenzabar’s President, with a copy to its General Counsel.
12.2 Assignment. You may not assign its rights or obligations under this agreement, in whole or in part, without the prior written consent of Jenzabar. Jenzabar may freely assign its rights and obligations under this agreement to any parent, subsidiary and/or affiliate of Jenzabar or to any successor in interest by consolidation, reorganization, merger, or acquisition of substantially all of its assets. Any prohibited assignment will be null and void.
12.3 Injunctive Relief. Each party acknowledges that its breach of this agreement may cause the other party irreparable damages for which recovery of money damages would be inadequate. Therefore, each party agrees that the other party will be entitled to seek injunctive relief to protect its rights under this agreement in addition to any other remedies.
12.4 Entire Agreement; Amendment and Counterparts. This agreement is the exclusive statement between the parties regarding the subject matter of this agreement, and supersedes all other previous agreements made between the parties, whether oral or written, with respect to the subject matter of this agreement. This agreement does not supersede or modify any existing agreements between Jenzabar and You relating to software, support and other services not specified herein. Any modification of the standard terms of this agreement must be specified in writing on a separate addendum signed by a duly authorized representative of each party. This agreement may be executed in multiple counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.5 Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to its conflict of laws principles.