JetSlides License and Hosting Agreement
This Agreement (as defined below) is between JetSlides, a division of Zoom Communications Inc., and "You" (namely, the customer: (i) listed on an accepted Sales Order - Acknowledgement applicable to the use of the Software and Services described therein; or (ii) who otherwise agreed to be bound by this Agreement). By using the Services or using or installing the Software, You are acknowledging and confirming Your agreement to all of the terms and conditions of this Agreement. If You do not agree to any of these terms and conditions, then do not use the Services, the Software or the Documentation.
You agree that this Agreement is like any written negotiated agreement signed by You, and You agree to be bound by, and fully comply with, its terms. You represent and warrant that You have all necessary right, power and authority to enter into this Agreement and to perform and otherwise discharge all of Your obligations hereunder and that Your use of the Services and the Software does not and will not violate any applicable laws (including, for greater certainty, the export control laws of the United States of America).
If You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, You may not enter into this Agreement and You may not download, install or use the Software or use the Services. By using the Services or using or installing the Software You are explicitly stating that You have verified in Your own jurisdiction if Your use of the Services and the Software is allowed. Your access to the Services, Software and/or this Agreement may be terminated without warning if JetSlides reasonably believes that Your use of the Services or the Software is not permitted in Your jurisdiction.
You acknowledge and agree that You are only being granted a limited license to use the Software, Services and Documentation and that, for greater certainty, such license shall not be construed as to grant to You the right to use any other software, services or documentation of JetSlides or its suppliers, or to use or exploit the Software, Services and Documentation in any manner other than as expressly permitted by this Agreement.
Article 1 : INTERPRETATION
The following terms shall have the following meanings when used in this Agreement:
"Account" means the account through which an Authorized User may access and use the Service and Software;
"Agreement" means this JetSlides License and Hosting Agreement including a Sales Order – Acknowledgement that has been accepted by JetSlides (if any);
"Authorized User" means a single person, authorized by You, to use the Services on Your behalf;
"Bandwidth" means the capacity for data transfer of an electronic communications system expressed as a function of bits per second;
"Documentation" shall mean all manuals, documentation and other related materials, or any portion thereof, pertaining to the Services or Software provided or made available by JetSlides to You in conjunction with the Software or Services (as applicable), and shall include any abridgement or condensed form of such documentation, and any other work derived therefrom;
"Effective Date" shall mean the date on which: (i) JetSlides accepts and agrees to the Sales Order – Acknowledgement as specified therein, or (ii) You agree to be bound by this Agreement;
"JetSlides" shall mean the division of Zoom Communications Inc. and the online video platform software;
"Licensee Content" shall mean all items supplied by You or Your Authorized Users for inclusion in, use in association with the Services or Software, including all program, data, or other software files, regardless of format, documents, text, pictures, photographs, graphics, video, animation, and sound recordings;
"Sales Order – Acknowledgement" means, if applicable, the accepted sales order-acknowledgement applicable to Your use of the Software, Services and/or Documentation described therein;
"Services" shall mean, as applicable: (i) those services specified in the Sales Order - Acknowledgment, as may be amended from time to time, provided by JetSlides with respect to (a) an online video platform that enables You to upload, manage and/or distribute the Licensee Content together with (b) such other services offered by JetSlides from time to time in the manner as more particularly set out herein; or alternatively (ii) the basic JetSlides Service, as may be amended from time to time at JetSlides's sole discretion, in the event that You are not relying upon a Sales Order – Acknowledgment that has been accepted by JetSlides;
"Software" shall mean the actual JetSlides software application used to perform the Services, or any portion thereof, as may be amended from time to time;
"Storage" shall mean the space available to store audio/visual files stored by JetSlides in an Account; and
"Term" shall mean the Initial Term along with any Renewal Terms.
Article 2 : GRANT OF RIGHTS
JetSlides hereby grants, and You hereby accept, subject to the terms and conditions of this Agreement, a revocable, non-exclusive and non-assignable license to use the Services, Software, and Documentation for the purpose of presenting, managing and/or distributing the Licensee Content online.
You may (subject to, and only to the extent of, the license rights granted to You in Section 2.1 above) permit Your Authorized Users to use the Software, Services and/or Documentation for such purpose. You shall be fully responsible for Your Authorized Users' compliance with this Agreement in such use.
You may provide access to, or copies of, the Documentation, if any, to Your Authorized Users as necessary for, and in conjunction with, Your authorized use of the Software and/or Services, and may abridge or condense the Documentation in connection therewith, provided that the copyright to any derivative work shall belong to JetSlides and You shall reproduce with such copy or work any trade-mark, copyright and other notices, or any other indicia of ownership contained in, or associated with, the Documentation.
You shall not sublicense, lend or lease the Software, Services or Documentation, or otherwise make the Software, Services or Documentation available, to any third party. You shall not permit the Software, Services or Documentation to be subject to any timesharing, service bureau, subscription service or rental activities.
You shall not share information about the Software, Services or Documentation with any third party without the written consent of JetSlides.
You acknowledge and agree that there are no limits to the number of licenses or rights that JetSlides may grant to third parties in respect of the Software, Services or Documentation.
You shall not, directly or indirectly, send, submit, post, receive or otherwise facilitate, or in any way use, or permit to be used, the Software, Services or Documentation, to send, submit, post, receive or otherwise facilitate the transmission of any materials that are abusive, obscene, profane, sexually explicit, threatening, predatory or materials containing graphic or gratuitous violence, pornography or sexually explicit content, or blatant expressions of bigotry, racism or hate. Moreover, You shall not use the Software, Services or Documentation to: (i) make network connections to any users, hosts, or networks unless You have permission to communicate with them; (ii) violate the security or integrity of any network, computer or communications system, software application, or network or computing device; or (iii) distribute, publish, send, or facilitate unsolicited mass e-mailings, promotions, advertising, or solicitations (like "spam"), including commercial advertising and informational announcements.
You shall comply with all applicable laws (including, but not limited to export/import laws and laws relating to privacy, obscenity, copyright, trademark, confidential information, trade secret, libel, slander or defamation). You acknowledge and agree that You shall be responsible and liable for all uses made by You or Your Authorized Users of the Software, Services or Documentation. Notwithstanding any other provision in this Agreement, JetSlides may terminate this Agreement, or any portion of the licenses granted herein, immediately, without notice, if it is determined that You or Your Authorized Users have failed to comply with any applicable laws.
Although JetSlides does not constantly monitor the Licensee Content, it nevertheless expressly reserves the right, but undertakes no duty, to review, edit, move or delete any Licensee Content, or any parts thereof, provided for use in association with the Software or Services, in JetSlides's sole discretion, without notice. JetSlides reserves the right to suspend Your access to and/or use of the Service to the extent that JetSlides determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user, or the Service; provided further, however, that in such event, JetSlides shall only suspend that portion of the Service as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
In order to avoid potential misunderstandings or disputes, JetSlides does not accept or consider unsolicited ideas or suggestions with respect to the Services, Software or Documentation (collectively, "Submissions"). If You send any Submissions to JetSlides, You automatically grant (or warrant that the owner of the Submissions grants) to JetSlides and its successors, assigns and licensees a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use and exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing any attribution or compensation to You or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of JetSlides or its successors, assigns and licensees, and You agree, represent and warrant that all moral rights in the Submissions are waived in favour of JetSlides and its successors, assigns and licensees.
Article 3 : THE SERVICES
JetSlides shall use commercially reasonable efforts to provide You and Your Authorized Users with access via the Internet to the Software for the purpose of using the Software in accordance with the terms of this Agreement and in the manner more particularly set out herein. Generally, JetSlides endeavors to provide such access on a 24-hours per day and 365 days per year basis. However, such access may not be available from time to time as a result of repairs, upgrades or routine maintenance. JetSlides will use commercially reasonable efforts to minimize the impact of such activities.
You acknowledge and agree that You and Your Authorized Users are responsible for obtaining Your and their own access to the Internet and that JetSlides shall not provide such access or any services in relation thereto.
The Services and Software may enable You to make choices about the presentation, management and distribution of the Licensee Content. You acknowledge that any changes that You might make may not be reflected for a period of forty-eight (48) hours.
You acknowledge and agree that most information shared or communicated between You, Your Authorized Users and JetSlides, with respect to Your use of the Services or the Software occurs in an unsecured environment, is not treated as confidential, and may be intercepted and read by others.
You shall be permitted to provide access codes and passwords to Authorized Users. You acknowledge and agree that You are solely responsible for the issuance of access codes and passwords and that JetSlides will only issue access codes or passwords to Authorized Users on Your instruction and as Your agent.
You represent, warrant, and covenant that: (i) You will promptly update the information that You provided to JetSlides in the Sales Order - Acknowledgment (if any) and any other information You may have provided to JetSlides in connection with Your use of the Services; (ii) You either own fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, contents and permissions as are necessary to perform Your obligations hereunder, exercise Your rights hereunder and to grant the license granted by You, implied or otherwise, under this Agreement; and (iii) the Licensee Content and Your use of same through the Services or Software, either directly or indirectly, does not, and will not, infringe, violate or misappropriate any third party's rights.
You acknowledge and agree that the user identification provided by JetSlides to You and each of Your Authorized Users, so that You and Your Authorized Users may access, utilize or otherwise employ the Services and/or the Software, and the passwords selected by and used by You and Your Authorized Users in conjunction with the user identifications are to be kept secret and confidential. You shall not, and shall cause Your Authorized Users to not, disclose such user identifications or passwords to any other party without the express written permission of JetSlides.
You acknowledge and agree that You shall be responsible for each and every access, use or employment of the Services or Software that occurs in conjunction with such passwords and user identifications, and that JetSlides is authorized to accept the user identifications and passwords as conclusive evidence that You, or Your Authorized Users, as the case may be, have accessed, utilized, or otherwise employed the Services and/or the Software.
You agree that You will not attempt to, nor permit Your Authorized Users to, enter restricted areas of JetSlides's computer systems or perform functions that You are not authorized to perform pursuant to this Agreement. JetSlides may, without notice, temporarily suspend Your, or any of Your Authorized User's, or any other party's access to the Software, Services, or Documentation, (including, without limitation, any specific areas hosted within Services or Software) by deactivating any password(s) or links to the Internet if JetSlides reasonably suspects that You, or any of Your Authorized Users, or any other parties are obtaining unauthorized access to JetSlides's other systems or information, or are using otherwise valid user identifications or passwords in any other unauthorized manner. These suspensions will be for such periods of time as JetSlides may reasonably determine is necessary to permit the thorough investigation of such suspended activity. Notwithstanding any other provision in this Agreement, JetSlides may terminate this Agreement, or any portion of the licenses granted herein, immediately, without notice, if it is determined that You or Your Authorized Users have undertaken such unauthorized activity.
You are solely responsible for Licensee Content, as well as for the content of any communications by You or Your Authorized Users, including any communications involving the use of the Services or the Software. You are solely responsible for making and keeping backup copies of Licensee Content. You and Your Authorized Users are solely responsible for applying the appropriate level of access rights to Licensee Content and to communications involving the use of the Services or Software. JetSlides shall not be responsible or liable for the deletion or accuracy of Licensee Content, the failure to store, transmit, encrypt (or otherwise secure) or receive Licensee Content, or the storage, transmission, encryption (or other security) or receipt of any other communication involving the use of the Services or Software.
Article 4 : TITLE
You agree that title to and ownership of the Software (including all source code), the Services and Documentation and any modifications made thereto and all intellectual property rights therein shall at all times remain with JetSlides and/or its suppliers.
You shall not have any right, title or ownership interest in the Software, Services or Documentation except the limited right to use the Software, Services and Documentation as explicitly provided in this Agreement.
JetSlides agrees that title to and ownership of the Licensee Content and all intellectual property rights therein shall at all times remain with You.
Article 5 : SUPPORT
For the Term of this Agreement, JetSlides shall provide, to such degree as JetSlides makes such services generally available, support services on an annual basis with respect to the Software and/or Services. Support services currently include delivery of bug fixes and workarounds, and support via telephone under the terms described in the Sales Order-Acknowledgement will apply. Where telephone support is provided, only Your Authorized Users shall be entitled to make use of same.
If, for whatever reason, support is required to be delivered by JetSlides from anywhere other than the offices of JetSlides, and You approve the delivery of that support, You shall pay the then current applicable onsite support fees (including travel time) and JetSlides's reasonable travel, subsistence and other expenses incurred in connection therewith.
In providing support services JetSlides shall only be required to use reasonable commercial efforts to correct documented errors in the Services and/or Software identified by You, which can be repeated by JetSlides (with Your assistance if JetSlides so requests such assistance). Notwithstanding the forgoing, under no circumstances does JetSlides warrant or represent that all errors can or will be corrected.
Article 6 : TERM
The initial term ("Initial Term") of this Agreement shall commence on the Effective Date. The Initial Term of the Agreement shall be renewed automatically for successive periods of one (1) month each (a "Renewal Term") after the expiration of the Initial Term and any subsequent Renewal Term, unless You provide JetSlides, or JetSlides provides You with a written notice to the contrary thirty (30) days prior to the end of the Initial Term or any subsequent Renewal Term. Each Renewal Term shall incorporate and be governed by JetSlides's then current pricing.
Article 7 : SUBSCRIPTIONS AND PAYMENT
All prices are quoted and all payments shall be made in the currency noted on the Sales Order - Acknowledgement. If no currency is noted, then such amounts shall be payable and paid in Canadian dollars. Unless otherwise noted in the Sales Order.
If You purchase a paid subscription to the Services (a "Subscription"), You shall pay all fees to Zoom Communications Inc., including for any additional Services purchased by You or usage that exceeds the thresholds at the rates posted, as well as VAT and any other applicable taxes, applicable to such Subscription, as published on the Site at http://www.JetSlides.tv/packages.html from time to time. JetSlides may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of Your Subscription. JetSlides will provide You with prior notice of any change in fees to allow You to cancel Your Subscription prior to the end of the then-current term of Your Subscription.
Subscription fees for the Services are on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, JetSlides shall automatically renew Your Subscription at the end of its term unless Your Subscription is cancelled as per Section 9.3 at any time prior to the end of the then-current Renewal Term. You will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription package that You have chosen, unless JetSlides has notified You of any new rate in advance.
If You have elected to pay the fees referred to in Section 8.2 (Subscriptions and Payment) by credit card, You hereby warrant that the credit card information provided by You is correct, and You shall promptly notify JetSlides of any changes to such credit card information. You acknowledge and agree that if Your credit card payment cannot be processed for any reason, JetSlides may suspend or cancel Your Subscription.
All fees paid to JetSlides are non-refundable. For greater certainty, JetSlides shall have no obligation to issue refunds or credits for any unused Storage or Bandwidth, partial months or in connection with any downgrade, cancellation, termination or otherwise.
With at least 30 days prior notice to You, JetSlides may, in its discretion, change the Services or Software. If You do not agree to such changes, You will have an opportunity to terminate this Agreement with 30 days notice or prior to such changes going into effect. If You do not terminate this Agreement within such time, You hereby acknowledge and agree that Your failure to do so shall constitute Your affirmative acceptance of our changes.
Article 8 : TERMINATION
Unless otherwise prohibited by law, either party may terminate this Agreement: (i) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws, (ii) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 90 days after written notice identifying the matter constituting the material breach or (iii) by following the cancellation instructions set forth herein. In the event of a termination of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this agreement for any reason all fees and expenses payable under this Agreement shall become immediately due and payable.
This Agreement may be terminated by JetSlides for convenience upon 30 days' notice to You or if any of the following events of default occur: (i) if You materially fail to perform or comply with this Agreement or any provision hereof; (ii) if You fail to strictly comply with Your obligations under Articles 2, 3, 4, 7, or 10; (iii) if You become insolvent or admit in writing Your inability to pay Your debts as they mature or make an assignment for the benefit of creditors; (iv) if a petition under any foreign or Canadian bankruptcy act, receivership statute or the like, as they now exist or as they may be amended, is filed by You; or (v) if such a petition is filed by any third party or an application for a receiver is made by anyone and such petition or application is not resolved in Your favor within ninety (90) days.
This Agreement may be terminated by You, by providing JetSlides with written notice thirty (30) days prior to the end of the Initial Term or any subsequent Renewal Term. Each Renewal Term shall incorporate and be governed by JetSlides's then current pricing.
If You are not relying upon a Sales Order – Acknowledgement that has been accepted by JetSlides, we may unilaterally terminate this Agreement without notice to You.
Termination due to a material breach of Articles 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 3.9, 10.4 or 10.7 shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination if the defaults have not been cured within such thirty (30) day period.
Within ten (10) days after termination of this Agreement, You shall: (i) pay all amounts due and owing to JetSlides hereunder (if any); (ii) cease and desist all use of the Software, Services and Documentation; and (iii) at JetSlides's option, either (a) return to JetSlides all full or partial copies of the Software and Documentation in Your possession or under Your control, or (b) destroy the Software and Documentation, including all versions, copies or expressions in any tangible form or medium in Your possession or under Your control, and provide JetSlides with written confirmation that the foregoing has occurred.
Article 9 : CONFIDENTIALITY
The parties acknowledge that the Software, Documentation and Services are provided via the Internet and that there are inherent risks and limitations associated with the communication of information over the Internet including, without limitation, the possibility that such information may be lost, intercepted or altered or otherwise rendered non-confidential ("Internet Risks"). While the Software and Services may enable communication by encryption, it is the responsibility of each Authorized User to enable and use such encryption and that, even though some Authorized Users may be using such encryption in any given session, others may not be using same and that no encryption technology is completely secure. You acknowledge and agree that any communication undertaken via the Software or Services, even if encrypted, is subject to Internet Risks, and that, notwithstanding any other provision herein, JetSlides shall not in any way be responsible or liable for any claim, action, damage or expense (direct, indirect, consequential or otherwise) arising from such Internet Risks, the communication of information over the Internet, or Your, Your Authorized Users' or any third party's actions.
During the term of this Agreement, a party ("Receiving Party") may have disclosed to it information of the other party ("Disclosing Party") of a confidential nature ("Confidential Information"). Confidential Information shall not include information which: (i) is or becomes publicly known or available to the Receiving Party at or after the time of disclosure through no wrongful act of the Receiving Party; (ii) is in the possession of or known to the Receiving Party at the time of disclosure; or (iii) is rightfully obtained by the Receiving Party from a third party.
JetSlides acknowledges that it may receive Your Confidential Information. JetSlides shall not use such information for any purpose other than as permitted hereunder or to perform its obligations hereunder and shall not disclose such information to any third party except: (i) as required for JetSlides to provide the Services (including, without limitation, by communicating information over the Internet) and perform its obligations hereunder; or (ii) as required pursuant to the order of a court or administrative body of competent jurisdiction or a government agency.
You acknowledge that the Software and Services contain valuable Confidential Information and proprietary technology of JetSlides and its suppliers. You shall not use the Confidential Information of JetSlides for any purpose other than as permitted hereunder and shall not disclose the same to any third party except: (i) as required for by You to use the Software and the Services in accordance with this Agreement; or (ii) as required pursuant to the order of a court or administrative body of competent jurisdiction or a government agency.
Where a Receiving Party is required to disclose the Confidential Information of the Disclosing Party pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, the Receiving Party shall: (i) if practicable and permitted by law, notify the Disclosing Party prior to such disclosure and as soon as possible after such order; (ii) cooperate with the Disclosing Party (at the Disclosing Party's costs and expense) in the event that the Disclosing party elects to legally contest, request confidential treatment, or otherwise attempt to avoid or limit such disclosure; and (iii) limit such disclosure to the extent legally permissible.
Upon any termination or expiration of this Agreement, each party shall promptly return to the other or destroy the Confidential Information of the other then in its custody or control, provided however that: (i) each party shall be permitted to retain such copies of such information as may be required by law or its record retention obligations and (ii) neither party will be required to destroy such copies as may be retained as part of its reasonable system back-up and archival activities.
You may not create derivatives, modify, decompile or reverse engineer the Software or do anything that will reveal or generate the source code of the Software. Any such act will be deemed to constitute a trespass on the rights, titles and interests of JetSlides and its suppliers.
JetSlides shall have the right to identify You as a customer of JetSlides and You shall have the right to identify JetSlides as the provider of any Services or Software.
Article 10 : WARRANTIES AND LIMITATIONS OF LIABILITY
You acknowledge that You have or will have independently determined that the Software, Services and Documentation meet Your requirements and that You have not, and shall not, rely on any representation made, or information provided, by JetSlides as to the suitability of the Software, Services or Documentation for any particular purpose.
EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN, THE SOFTWARE, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" AND "WITH ALL FAULTS BASIS" AND JETSLIDES EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SOFTWARE, SERVICES OR DOCUMENTATION, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INFRINGEMENT OR PERFORMANCE AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LAW. THIS AGREEMENT SETS OUT THE ENTIRE EXTENT OF ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS IN RESPECT OF THE SOFTWARE, SERVICES AND DOCUMENTATION AND NO AGENT OF JETSLIDES IS AUTHORIZED TO ALTER SAME. ALL ALTERATIONS SHALL BE IN WRITING AND SIGNED BY JETSLIDES.
EXCEPT IN RESPECT OF WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL JETSLIDES BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS AND/OR ROYALTIES, OR OTHER ECONOMIC LOSS, ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION OR EXPIRATION, WHETHER FOR BREACH OR ALLEGED BREACH OF A REPRESENTATION OR ANY OBLIGATION ARISING THEREFROM AND IRRESPECTIVE OF WHETHER JETSLIDES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMING THE FOREGOING, YOU ACKNOWLEDGE THAT THE SERVICES, SOFTWARE OR DOCUMENTATION ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL OR MEDICAL FACILITIES, LIFE SUPPORT OR WEAPONS SYSTEMS) AND THAT JETSLIDES SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES.
THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR JETSLIDES TO ACCEPT ANY LIABILITY OR RISKS BEYOND WHAT IS EXPRESSLY PROVIDE HEREIN AND IF ANY SUCH LIABILITIES OR RISKS WERE TO BE ASSUMED BY JETSLIDES, JETSLIDES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, JETSLIDES'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE LICENSE AND USE OF THE SOFTWARE, SERVICES AND DOCUMENTATION UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO: (I) THE LICENSE FEES ACTUALLY PAID BY YOU TO JETSLIDES UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO SUCH LIABILITY; OR (II) $25, WHICHEVER IS LESS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES OR DAMAGES, SO ASPECTS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Article 11 : YOUR INDEMNIFICATION
JetSlides shall defend You in any suit or proceeding or threatened suit or proceeding brought against You based solely on a claim that the Software infringes any enforceable copyright or trademark right in Canada of any third party but only if: (a) You notify JetSlides in writing of any such suit or proceeding or threatened suit or proceeding promptly after You first learn of such suit or proceeding or threatened suit or proceeding; and (b) You provide such reasonable assistance and co-operation as JetSlides may reasonably request from time to time in connection with the defense of any such suit or proceeding or threatened suit or proceeding.
JetSlides shall have complete control over any such suit or proceeding including, without limitation, the right to settle same on Your behalf on any terms JetSlides deems desirable (in the sole exercise of its discretion) so long as it is at no cost to You. You shall have the right to be independently represented by counsel of Your own choice and at Your own cost. You shall not settle any such claim without JetSlides's prior written consent. Subject to the limitations of liability contained herein, JetSlides agrees to pay such damages and costs finally awarded against You or payable pursuant to a settlement agreement (approved of by JetSlides) in connection with such suit or proceeding.
If the use of any of the Services or Software is enjoined as a result of any action, JetSlides may, at its sole option and expense: (a) obtain for You the right to continue using the Services or Software; or (b) modify the Services or Software so that it no longer infringes; or (c) provide You with reasonable alternate software, as applicable, providing substantially similar features, functions and capability; or (d) refund to You the license fees paid by You for the Services or Software in the one (1) year period preceding the event giving rise to such action and You shall cease using the Services or Software.
JetSlides shall have no liability hereunder for infringement claims based upon modifications by You, or on Your behalf, to the Services or Software, the combination of the Services or Software with any other software, equipment, system or process or use of the Services or Software other than as described in the Documentation.
The foregoing sets out the entire liability of JetSlides and the sole obligations of JetSlides to You in respect of any claim that the Software infringes any third party rights.
Article 12 : JETSLIDES'S INDEMNIFICATION
You agree to indemnify, defend and hold harmless JetSlides and JetSlides's officers, employees directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney's fees and litigation expenses), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by You in this Agreement.
Article 13 : GENERAL
JetSlides is an independent contractor under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship between You and JetSlides (except as provided explicitly herein).
All notices, authorizations and requests in connection with this Agreement shall be deemed given: (i) five (5) business days after being deposited in the US mail, postage prepaid, certified or registered, return receipt requested; or (ii) one (1) business day after being sent by overnight courier, charges prepaid; and addressed as provided in the Sales Order – Acknowledgement or to such other address as the party to receive the notice designates by written notice to the other. If You are not relying upon a Sales Order – Acknowledgement that has been accepted by JetSlides, JetSlides may provide general notices intended for You by posting such notices on JetSlides's website. In this instance, You will be deemed to have received any notice posted in the appropriate section of our website: it is Your responsibility to check our website periodically for such notices.
JetSlides may assign any of its rights and obligations under this Agreement without Your consent. You shall not assign this Agreement or Your rights hereunder without the prior written consent of JetSlides.
The validity, interpretation, construction and performance of this Agreement shall be governed by the laws in force in the Province of Alberta, Canada (without reference to conflicts of laws principles). Each of the parties hereto irrevocably attorns and consents to the jurisdiction of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement and that in no event shall this Agreement be governed by the conflict of laws rules of any jurisdiction.
The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding branch of the same of any other provision.
All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns. Your obligations under Articles 2.10, 3.6, 3.8, 3.10, 10, 11, 13, and 14 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
Any provision of this Agreement that is prohibited or unenforceable by a Court of competent jurisdiction will be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement and any prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction. For any provision severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceeding, to the extent permitted by the applicable law.
This Agreement, namely the Sales Order – Acknowledgement (if any) and this JetSlides License and Hosting Agreement, contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument agreed to by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.