Terms of Use

BY CLICKING “YES” OR SELECTING “AGREED” ON OUR WEBSITE, OR BY DOWNLOADING SOFTWARE, UPLOADING CONTENT, OR OTHERWISE PARTICIPATING IN THE JSDN NETWORK OWNED AND OPERATED BY JAMCRACKER, INC. (“JAMCRACKER”), YOU (“ENTERPRISE ORGANIZATION  ”) AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS JSDN PARTICIPATION AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT UPLOAD OR DOWNLOAD ANY CONTENT AND DO NOT INSTALL OR USE ANY SOFTWARE.

 

1. Purpose

Jamcracker has created the Jamcracker Services Delivery Network (hereinafter “JSDN”) a program to enable ISVs and Service Providers to participate in a value-added network of On Demand and Software-as-a-Service products and services, as well as solution providers to distribute such On Demand and Software-as-a-Service products and services. Through JSDN, An ENTERPRISE ORGANIZATION   will be able to:

  1. publish a description of its On Demand and Software-as-a-Service products and services;
  2. gain exposure and access to partners interested in reselling and distributing JSDN based services;
  3. resell or distribute the JSDN-based services;
  4. certify integration with Jamcracker’s industry leading SaaS and Service Delivery solution, Pivot Path;
  5. increase visibility with ORGANIZATION and prospects looking to deploy JSDN certified products and services.

 

 

2. JSDN Marketplace Limitations; Trademarks

2.1 Jamcracker reserves the right to refuse to include an ENTERPRISE ORGANIZATIO  in the JSDN marketplace if an ENTERPRISE ORGANIZATION  does not adhere to the requirements contained in this Agreement or in any exhibit hereto. Jamcracker can remove an ENTERPRISE ORGANIZATION at any time, without giving a reason, upon written notice. Jamcracker can remove an ENTERPRISE ORGANIZATION from the JSDN marketplace if an ENTERPRISE ORGANIZATION does not comply with national or international law, or that contain discriminating content at any time and without prior notice. This section also applies if an ENTERPRISE ORGANIZATION breaches this Agreement, for example, by not fulfilling its obligations.

2.2 Jamcracker is entitled to temporarily suspend access to the an ENTERPRISE ORGANIZATION Services link, any linked pages, and content through the JSDN marketplace, if Jamcracker has sufficient information of any unlawful content or service on any linked pages, in particular by receiving a formal warning letter by a person alleging such violation unless such warning letter is obviously abusive and/or by statements of public authorities such as courts’ administrative agencies, and/or district attorneys’ offices. Jamcracker shall inform an ENTERPRISE ORGANIZATION of such suspension immediately and shall ask an ENTERPRISE ORGANIZATION to delete the allegedly unlawful content or service or to provide evidence for the lawfulness of such content or service. If An ENTERPRISE ORGANIZATION is not willing to remove such unlawful content or service without undue delay, Jamcracker is entitled to immediately terminate this Agreement.

2.3 Jamcracker shall be entitled to display the trademarks, trade names, and service marks of the ENTERPRISE ORGANIZATION  , as provided by an ENTERPRISE ORGANIZATION  (“ENTERPRISE ORGANIZATION  Marks”), subject to change from time to time, provided that Jamcracker:

(i) does not create a unitary composite mark involving an ENTERPRISE ORGANIZATION  Marks without the prior written approval of the ENTERPRISE ORGANIZATION  , and

(ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the ENTERPRISE ORGANIZATION marks in accordance with applicable trademark law and practices.

2.4 Jamcracker acknowledges the ownership of the ENTERPRISE ORGANIZATION Marks and agrees that all use of the An ENTERPRISE ORGANIZATION marks shall be under this license.

2.5 Each party agrees to promptly notify the other party of any unauthorized use of the other party's trademarks of which it has actual knowledge. Each party shall have the sole right and discretion to bring proceedings alleging infringement of its trademarks or unfair competition related thereto; provided, however, that each party agrees reasonably cooperate and assist, at the requesting party's expense, with respect to any such infringement proceedings.

 

3. An ENTERPRISE ORGANIZATION Obligations

3.1 An ENTERPRISE ORGANIZATION  guarantees that the ENTERPRISE ORGANIZATION  Services do not jeopardize the functioning of other ENTERPRISE ORGANIZATION  services or the JSDN marketplace and that the ENTERPRISE ORGANIZATION  Services correspond to the information supplied by ENTERPRISE ORGANIZATION  to Jamcracker.

3.2 The ENTERPRISE ORGANIZATION  acknowledges and agrees that Jamcracker owns all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, titles and interest in and to the JSDN look and feel, Pivot Path technology, JSDN program and JSDN related trademarks, service marks and other copyrights. When providing links to JSDN web pages, an ENTERPRISE ORGANIZATION will not infringe upon Jamcracker's rights. JSDN Partner’s rights are limited to those expressly granted in this Agreement or in an applicable Exhibit.

3.3 An ENTERPRISE ORGANIZATION  is responsible for the observance in its linked pages of all applicable national and international laws, rules, directives, and regulations, in particular those of the European Community on Internet services and e-commerce.

 

4. Program Fees

4.1 An ENTERPRISE ORGANIZATION agrees to pay the fees listed in the applicable Exhibits or Agreements within thirty (30) days from the date of invoice.

4.2 An ENTERPRISE ORGANIZATION shall be responsible for all sales, use and excise taxes and any other taxes based on its use of the products and services. Jamcracker shall not be responsible for any taxes, except those based on its net income.

 

5. Confidential Information

5.1 Neither party will use any Confidential Information of the other party except as expressly permitted in this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its directors, officers, employees, consultants and legal and financial advisors who need access to such Confidential Information and who have entered into written confidentiality agreements consistent with this Section 5. “Confidential Information” means all information that is marked or otherwise identified as confidential or proprietary at the time of disclosure or reasonably should be known by recipient to be proprietary or confidential. “Confidential Information” shall not include any infor­mation that: (A) is at the time of disclosure, or subsequently becomes, publicly known except by breach of this Agreement; (B) a party receives (“Recipient”) from a third party, who is not under an obligation of confidentiality to Discloser; (C) is independently developed by the Recipient without use of, or reference to, Discloser’s Confidential Information, as shown by Recipient’s records; or (D) is required by law to be disclosed by Recipient, provided that Recipient gives Discloser written notice as promptly as possible under the circumstances of such requirement prior to such disclosure, and provides reasonable assistance at Discloser’s reasonable expense in obtain­ing an order protecting the information from public disclosure.

5.2 Each party acknowledges that a breach of this Section 5 could cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, the parties agree that, in addition to any other remedies to which the non-breaching party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive relief from a court of competent jurisdiction in the event of a breach of this Section by the other party or any of its directors, officers, employees, consultants and legal and financial advisors.

 

6. Indemnification

6.1 Each party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its, directors, officers and employees (“Indemnified Party”) from and against all claims, actions, liabilities, expenses, damages and costs, including, but not limited to, reasonable attorneys’ fees, that may at any time be incurred by reason of a third party claim against Receiving Party alleging that the Indemnifying Party’s products or services, directly infringe a copyright, U.S. trademark or U.S. patent provided that the Indemnified Party: (i) gives written notice of the claim promptly to Indemnifying Party; (ii) gives Indemnifying Party sole control of the defence and settlement of the claim; (iii) provides to Indemnifying Party all available information, authority and assistance at Indemnifying Party’s expense; and (iv) has not compromised or settled such claim.

The indemnity obligation contained above does not apply to (1) any use of Indemnifying Party’s products and services beyond the scope of this Agreement, (2) any modification or derivative works of Indemnifying Party’s products or services made by or for Indemnified Party, (3) use of a superseded infringing version of Indemnifying Party’s products or services after release of a non-infringing version by Indemnifying Party, (4) any use or combination of Indemnifying Party’s products or services with any technology, software or hardware not supplied by Indemnifying Party, if such alleged infringement would be avoided by use of Indemnifying Party’s products or services alone or with other technology, software or hardware, (5) the negligent use of Indemnifying Party’s products or services by Indemnified Party, (6) any third party software or technology that is included or provided with Indemnifying Party’s products or services, or that operates in conjunction with Indemnifying Party’s products or services; or (7) any use of Indemnifying Party’s products or services in connection with any ultra-hazardous activity, or any other activity for which its failure might result in serious property damage, or death or serious bodily injury.

6.2 If a claim of infringement under Section 6.1 occurs, or if Indemnifying Party determines that a claim is likely to occur, Indemnifying Party will attempt, in the following order of precedence, to: (1) procure for Indemnified Party the right or license to continue to use the products or services free of the infringement claim; or (2) replace or modify the products or services to make them non-infringing provided that the replacement products or services substantially conforms to Indemnifying Party's then-current specification for the product or services. If these remedies are not reasonably available to Indemnifying Party despite Indemnifying Party’s commercially reasonable efforts, Indemnifying Party may terminate this License Agreement.

 

7. Warranty Disclaimer

TO THE FULLEST EXTENT ALLOWED BY LAW, JAMCRACKER DOES NOT WARRANT THAT JSDN MARKETPLACE, PIVOT PATH OR THE PRODUCTS PLACED IN JSDN MARKETPLACE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR OR DEFECT, ACCURACY OF INFORMATION GENERATED, TITLE AND NON-INFRINGEMENT OR ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE PRODUCTS AND SERVICES DESCRIBED HEREIN ARE PROVIDED “AS IS” AND JAMCRACKER DOES NOT GUARANTEE ANY QUALITIES CONCERNING THE JSDN MARKETPLACE OR OTHER JAMCRACKER PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, QUALITY STATEMENTS IN ADVERTISEMENTS OR PUBLIC ANNOUNCEMENTS. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.

 

8. Limitation of Liability

8.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF GOODWILL, LOSS OF PROFITS, OR COST OR REPLACEMENT GOODS OR SERVICES, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING ANY ACTIONS IN TORT (INCLUDING NEGLIGENCE), CONTRACT AND/OR BREACH OF WARRANTY, EVEN IF THAT BREACHING OR TORTIOUS PARTY HAS BEEN INFORMAED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES.

8.2 IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY TO THE OTHER (EXCEPT IN CASE OF A BREACH OF CONFIDENTIALITY OR THE INDEMNIFICATION OBLIGATIONS HEREIN) EXCEED THE AMOUNTS PAID HEREUNDER DURING THE TWO YEARS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.

 

9. Term and Termination

9.1 This Agreement, including any exhibits hereto executed at the same time JSDN clicks to accept this Agreement, shall commence on the Effective Date and unless terminated earlier pursuant to Section 9.2 (Termination for Cause), shall remain in effect for a period of one (1) year from such Effective Date. Thereafter, this Agreement shall automatically renew for additional one (1) year terms unless either party provides to the other party written notice of termination sixty (60) days prior to the anniversary date of such one year term.

9.2 Either party may immediately terminate this Agreement if the other party fails to remedy a material default within thirty (30) days of receipt of written notice of such default.

 

10. General

10.1 Governing Law. This Agreement shall be governed by the laws of the State of California without regard to conflicts of law provisions thereof and the venue for any cause of action hereunder shall be Santa Clara County, CA. The parties agree that the application of the (i) United Nations Convention on Contracts for International Sale of Goods and (ii) Uniform Computer Information Transactions Act are both specifically excluded.

10.2 Force Majeure. Except for either party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, if the party makes reasonable efforts to perform, provided, however, that if a party suffering a force majeure event is unable to cure that event within thirty (30) days, the other party may terminate this Agreement.

10.3 Independent Contractors. The parties’ relationship during the term of this Agreement will be that of independent contractors. Neither party will have authority to bind the other party, to assume or create any obligation, express or implied, on behalf of the other party, to enter into any agreements regarding the other party’s products or services, or to make any warranties or representations on behalf of the other party or in the other party’s name. In all matters relating to this Agreement, neither party nor its employees or agents are or will act as employees of the other party. Each party will reimburse the other party for and hold it harmless from any liabilities or obligations imposed or attempted to be imposed upon the other party by virtue of any such law with respect to employees of each party in performance of this Agreement.

10.4 Insurance. The parties each represent that it carries throughout the term of this Agreement sufficient insurance to protect against related liability, which may arise in the performance and use of the products and services. Upon request the parties will provide a certificate of insurance that documents the insurance coverage carried by such party.

10.5 Notices. All written notices required by this Agreement must be delivered to the addresses provided by the parties on the date of this Agreement by a means evidenced by a delivery receipt and will be effective upon receipt. Notices to each party shall be addressed to the attention of its Chief Executive Officer and to its General Counsel.

10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

10.7 Assignment. Neither party may assign any of its rights, whether by operation of law or otherwise, without the prior express written consent of the other party, provided however, either party may assign this Agreement without such consent in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its relevant assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.8 Entire Agreement. This Agreement, together with its Exhibits, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. Any modifications of this Agreement must be in writing and signed by both parties hereto.

10.9 Survival. The following provisions shall survive any termination of this Agreement: Section 5, Confidential Information, Section 6, Indemnification, Section 7, Warranty Disclaimer, and Section 8, Limitations of Liability.