License Agreement Private Cloud
JIVE SOFTWARE, INC.
LICENSE AND PROFESSIONAL SERVICES AGREEMENT
NOTE: THIS AGREEMENT WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN CUSTOMER (DEFINED BELOW) AND JIVE SOFTWARE, INC. PERTAINING TO THE SOFTWARE PRODUCT TO WHICH THIS AGREEMENT APPLIES OR RELATED PROFESSIONAL SERVICES (AS DEFINED BELOW). TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN CUSTOMER’S DOWNLOAD AND USE OF THE SOLUTION AND RECEIPT OF PROFESSIONAL SERVICES AND THIS AGREEMENT WILL NOT APPLY EVEN IF YOU ARE REQUIRED TO CLICK THE BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.
BY COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE “I AGREE” BUTTON, ACCESSING OR USING THE BASE PLATFORM (AS DEFINED BELOW) WITHOUT AN APPLICABLE OTHER AGREEMENT OR BY OTHERWISE AGREEING IN WRITING TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU SUBMIT TO JIVE SOFTWARE, INC., A DELAWARE CORPORATION (“WE” OR “JIVE”), AN OFFER TO OBTAIN THE RIGHT TO USE THE SOLUTION AND RECEIVE PROFESSIONAL SERVICES (EACH AS DEFINED BELOW) UNDER THE PROVISIONS OF THIS LICENSE AND PROFESSIONAL SERVICES AGREEMENT (THE “AGREEMENT”).
BY CLICKING THE “I AGREE” BUTTON, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE SOLUTION LISTED ON THE ORDER CONFIRMATION PAGE, PRICING SCHEDULE, QUOTE AND/OR INVOICE (EACH A “PRICING SCHEDULE”) WHICH JIVE OR ONE OF ITS AUTHORIZED RESELLERS (A “RESELLER”) PROVIDES TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF LICENSES TO THE SOLUTION AND RECEIPT OF PROFESSIONAL SERVICES DESCRIBED BELOW. THE TERMS OF EACH ORDERING DOCUMENT WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, JIVE IS UNWILLING TO PROVIDE THE SOLUTION OR PROFESSIONAL SERVICES TO THE CUSTOMER, AND YOU SHOULD NOT CLICK TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU SHOULD DISCONTINUE THE ORDER, DOWNLOAD AND/OR INSTALLATION PROCESS AND NOT REQUEST ANY PROFESSIONAL SERVICES.
Under this Agreement Customer may order from Jive or one of its authorized resellers (each a “Reseller”) (a) licenses to Jive’s standard platform software offerings (“Base Platform”), and those Add-Ons (defined in Section 2.1(b) below) made available by Jive and/or its suppliers, (b) related support and maintenance services (“Support Services”), and/or (c) consulting, implementation or other professional services (collectively “Professional Services”). The Base Platform and any Add-Ons acquired by Customer pursuant to Section 2.1(b) are collectively referred to as the “Solution”. The specifics of each Customer order will be set forth on a Pricing Schedule that references this Agreement and is executed by both parties. Customer’s execution of a Pricing Schedule constitutes a binding commitment to purchase the items described on the Pricing Schedule under the terms and conditions of this Agreement. All mutually executed Pricing Schedules are incorporated herein by reference.
2.0 SOFTWARE, LICENSE GRANTS AND RESTRICTIONS.
2.1 Versions; Add-On; Jive Apps Market.
(a) Types. Each Pricing Schedule will specify whether the Solution acquired thereunder is to be used as a Private or Public version. With a subscription to a “Private” version (also known as “Internal” or “Employee Community”), Customer is authorized to create and maintain a Community (defined below) for use within Customer’s organization solely by authorized individual, non-concurrent active users (“Users”) that are employees or specific individual independent contractors of Customer. With a “Public” license (also known as “External”), Customer is authorized to create and maintain a Community for use primarily by Users who are not employees or independent contractors of Customer (e.g. members of the general public). Customer will use the Solution for the intended version type set forth in the Pricing Schedule. A “Community” is an online virtual community of Users that (i) contains a collective, shared repository for user, group data, and search functionality and (ii) permits access to the underlying database by only one unique instance of the Solution. Each license to either the Public or Private version of the Solution permits Customer to access and use the Solution in connection with a single Community.
(b) Add-On. Jive may make available to Customer certain optional functionality which may be provided as a separate stand-alone module or as a plug-in (each an “Add-On”). Certain Add-Ons may require that Customer agree to certain additional restrictions, which will be mutually agreed upon in advance in writing such as in a Pricing Schedule. Any additional or separate pricing associated with an Add-On will be as set forth on the Pricing Schedule or otherwise agreed to by the parties in writing.
(c) Jive Apps Market. Customer acknowledges and agrees that (i) the Solution may allow Users to access a hosted marketplace known as the Jive Apps Market (the “Apps Market”) which allows Customer and/or Users to purchase one or more applications (each, an “App”) that may be used by Users, (ii) Customer may, in its sole discretion, enable or disable any or all such access to the Apps Market by Users, and (iii) each App shall be made available solely in accordance with the terms of the end user license agreement accompanying such App (the “App EULA”), which such App EULA shall supersede any conflicting terms or conditions of this Agreement with respect to Customer’s and Users’ access to and use of the particular App.
2.2 License Grants.
(a) Executable Code. Subject to the terms of this Agreement, including the applicable license implementation described in Section 2.3 below, and during the License Term (as defined in Section 10.1 below), Jive grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without sublicense rights, to (i) install (1) the Solution (in executable format and except as stated below) on Customer’s server and (2) any related plug-ins or components on, as applicable, Customer’s server or Users’ personal computers, (ii) use and permit Users to use the Solution (including any plug-ins or components) in connection with the creation and maintenance of a Community as described in Section 2.1(a) above, and (iii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available in connection with the Solution, if any (“Documentation”). Certain Add-Ons are provided on a hosted software-as-a-service basis. The Solution is deemed accepted upon delivery of the license key, provided that such acceptance shall not in any way impact the warranties set forth in Section 6.1 below. Upon mutual execution of a Pricing Schedule, Jive will make the Solution available to Customer for download using a password protected account on Jive’s website.
(b) Sublicense Rights. Subject to the terms of this Agreement, Jive grants to Customer the right to sublicense the usage rights granted hereunder with respect to the Solution solely (a) to one of Jive’s approved Alliance Partners located at www.jivesoftware.com/partners/alliance (each a “Subcontractor”), and (b) to permit the Subcontractor to provide outsourced services to Customer in connection with Customer’s authorized use of the Solution as permitted under this Agreement. Customer will notify Jive of its exercise of the sublicense set forth above and remain liable for any breach of this Agreement by such Subcontractor(s). The foregoing will not apply if Jive and Subcontractor are parties to an agreement which grants Subcontractor the same rights as those set forth in this Section 2.2(b).
2.3 License Implementation Types.
The Solution is available for license under the following implementations types. The relevant Pricing Schedule will designate the form of the Solution implementation the Customer will receive.
(a) User License. Customer may permit use of the Solution by no more than the number of Users specified in the relevant Pricing Schedule. Customer may order additional User licenses from Jive in accordance with the ordering process set forth in Section 1.0 above. To the extent that any licenses have been purchased and are in effect (“Existing Licenses”) at the time that Customer subsequently purchases additional User licenses (each, an “Additional License”), then the License Term pertaining to the Additional Licenses shall equal the period of time remaining on the then-current License Term pertaining to the Existing Licenses so that the License Term for all licenses shall be coterminous, regardless of when purchased and subject to payment of additional Fees for such Additional Licenses, as set forth in the applicable Pricing Schedule.
(b) Page View License. Under this licensing scheme, Customer may permit use of the Solution by an unlimited number of Users, as further described below.
(i) As used herein, a “Page View” means each request for a visually displayed impression of content presented by the Solution, including HTML content and content generated by asynchronous requests within the Solution
(ii) Each applicable Pricing Schedule shall set forth the following Fees: (1) a table of monthly Page View ranges (i.e., 0-500,000 or 500,001 to 1,000,000 monthly Page Views) (each, a “Page View Range”), (2) for each Page View Range, the associated monthly charge which is determined by dividing the annual Fee by 12 (the “Monthly Charge”) and (3) the initial estimated fee payable by Customer for use of the Solution in connection with a single Community for the initial License Term or applicable renewal License Term, (the “Initial Page View License Fee”). The Initial Page View License Fee will be based upon Customer’s anticipated and designated Page View Range as set forth on the Pricing Schedule (“Designated Page View Range”). The Initial Page View License Fee shall be payable in advance of the initial License Term or applicable renewal License Term within 30 days of the date of the invoice pertaining thereto.
(iii) On a monthly basis during the License Term, Jive shall track and deliver or make available to Customer a report summarizing the total number of actual Page Views during the preceding month (“Monthly Page Views”). During the License Term, if at any time the Monthly Page Views exceed the Designated Page View Range, Jive shall invoice Customer for excess Fees based upon the difference between the applicable Monthly Charge for the Designated Page View Range and the actual Page View Range (“Page View Overage Fee”) and Customer shall pay to Jive, in accordance with Section 11.2 below, all Page View Overage Fees, plus an overage charge equal to 20% of the Page View Overage Fee.
(c) Add-On. Pricing for an Add-On is dependent upon the particular implementation type for the Solution. Details regarding Add-On pricing will be as set forth in the applicable Pricing Schedule.
2.4 Additional License Restrictions.
Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Solution (or any portion thereof) to third parties (other than authorized Users in connection with providing access to the applicable Community), including, but not limited to, making such Solution available (i) through resellers or other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) create modifications to or derivative works of the Solution; (d) reproduce the Solution except that Customer may make archival copies of the Solution solely for backup purposes; (e) attempt to modify, alter, or circumvent the license control and protection mechanisms within the Solution; (f) use or transmit the Solution in violation of any applicable law, rule or regulation, including any data privacy or data protection laws, (g) intentionally access, use, or copy any portion of the Documentation or the Solution (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution or (h) remove, obscure or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation included on any display screen within the Solution (“Jive Marks”). Except for the sublicense rights granted under Section 2.2(b), Customer shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions. The Solution is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Solution is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
All licenses granted pursuant to this Agreement are, for purposes of Section 365(n) of the U.S. Bankruptcy Code, deemed to be licenses of rights to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. In any bankruptcy or insolvency proceeding involving Jive, Customer, as licensee of such rights, will retain and fully exercise all of its rights and elections under the U.S. Bankruptcy Code, which will apply notwithstanding conflict of law principles.
3.0 SUPPORT AND MAINTENANCE.
Jive offers the following levels of Support Services: Silver, Gold or Platinum. Silver Support Services are included without any additional charge to Customer. In the event Customer elects to upgrade to Gold or Platinum Support Services, any additional Fees required for such Gold or Platinum Support Services will be set forth on the Pricing Schedule. Jive will provide Support Services at the applicable level during the License Term in accordance with the terms and conditions described at: www.jivesoftware.com/legal (the “Support Terms”), which such terms are incorporated herein by reference.
4.0 PROFESSIONAL SERVICES.
Jive will perform Professional Services and provide the deliverables (“Deliverables”) as described in any mutually agreed upon statement of work (“SOW”). Each SOW will include the particulars of each Professional Services engagement. In a timely manner, Customer will provide all assistance reasonably requested by Jive in connection with the Professional Services. If Customer notifies Jive in writing within 30 days after a particular Deliverable is made available to Customer that the Deliverable does not conform to the requirements of the SOW, then Jive will, as Customer’s sole and exclusive remedy and Jive’s sole liability, modify or replace the Deliverables at no cost to Customer.
5.0 PROPRIETARY RIGHTS.
As between the parties, Jive and its suppliers will retain all ownership rights in and to the Jive Marks, the Solution, the Documentation, all Updates and Upgrades (as defined in the Support Terms), all Add-Ons, all Deliverables (except to the extent they include pre-existing Customer Confidential Information or intellectual property) and other derivative works of the Solution and/or Documentation that are provided by Jive, and all intellectual property rights incorporated into or related to the foregoing. Customer acknowledges that the goodwill associated with the Jive Marks belongs exclusively to Jive. All rights not expressly licensed by Jive under this Agreement are reserved. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Confidential Information, all pre-existing Customer intellectual property, and all content made available by Customer and Users through the Solution (“Community Data”). Customer’s rights to the Deliverables shall be the same as its rights to the Solution. Jive may use without limitation any suggestions, recommendations or other feedback provided by Customer regarding the Solution.
6.0 WARRANTIES AND DISCLAIMER.
Jive warrants that (a) it will perform all Professional Services in a professional manner consistent with industry standards and practices, and (b) the Solution, as delivered and when used in accordance with the Documentation, (i) will perform in all material respects as specified in such Documentation for a period of 90 days of the initial license term (as defined in the Pricing Schedule), and (ii) will not contain, any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines intentionally designed to permit unauthorized access to or use of either the Solution’s or Customer’s computer systems (“Viruses”); provided that the Base Platform does include functionality that prevents access to and use of the Solution in the event that Customer fails to pay the applicable Fees when due. In the event of any breach of the warranties in subsections (a) or b(i) above, Jive shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies promptly after its receipt of written notice from Customer. Jive will not be liable to the extent that any breach of the foregoing warranties are caused by (1) third-party components or services (including in combination with the Solution) not provided by Jive; (2) modifications to the Solution, other than Updates or Upgrades; (3) unauthorized use or use of the Solution other than in accordance with the Documentation, (4) Viruses introduced by Customer or its agents or Users, or (5) continued use of the Solution by Customer after Jive notifies Customer, pursuant to Section 7.0, to discontinue use of the Solution due to a claim, allegation or proceeding of third party infringement (collectively, “Exclusions”).
THE EXPRESS WARRANTIES IN SECTION 7.1 ARE THE EXCLUSIVE WARRANTIES OFFERED BY JIVE AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. JIVE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
Jive will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Solution infringes any copyright or trademark or misappropriates any trade secret rights recognized (in either case) in the United States, Canada, Latin America or any member country within the European Union. Jive will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Jive promptly in writing of such action, Customer giving Jive sole control of the defense thereof and any related settlement negotiations, Customer’s compliance with this Agreement, and Customer cooperating and, at Jive’s reasonable request and expense, assisting in such defense. If the Solution (or any component thereof) becomes, or in Jive’s opinion is likely to become, the subject of an infringement claim, Jive may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Solution so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Jive’s reasonable opinion, commercially reasonable, Jive may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Jive will have no obligation under this Section 7.0 or otherwise with respect to any infringement claim based upon (i) any Exclusions, or (ii) continued use of a Point Release of the Solution (other than the then-current version of the Solution) that is more than 12 months old where “Point Release” defined as a progressing of the 1st or 2nd digit of the version release number in a three point version control system, as applicable (e.g., v3.5 to v4.0 or v4.1 to v4.2)). Customer will have the right, at its own expense, to participate in the defense of any claim of infringement. This Section 7.0 states Jive’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
8.0 LIMITATIONS ON LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOLUTION, SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO JIVE BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF SECTION 9.0 OF THIS AGREEMENT, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
“Confidential Information” means, with respect to a party (the “Disclosing Party”), all non-public confidential information pertaining to such party’s business. Jive and Customer will comply with this Section 9.0 when exchanging Confidential Information under this Agreement. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “Receiving Party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party even if not designated or marked as such. The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least the same degree of care that Receiving Party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement. Confidential Information of the Disclosing Party will be disclosed only to those employees and contractors of the Receiving Party with a need to know such information. The Receiving Party shall not be liable to the Disclosing Party for the release of Confidential Information if such information: (a) was known to the Receiving Party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the Receiving Party; (c) was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the Receiving Party will notify the Disclosing Party promptly of such required disclosure and reasonably assists the Disclosing Party in efforts to limit such required disclosure.
10.0 TERM, TERMINATION AND EFFECT.
10.1 License Duration; Renewals.
The term of each license to the Solution purchased by Customer will commence on the date that both parties have executed the Pricing Schedule under which the Customer acquires such license, unless a later commencement date is expressly set forth on such Pricing Schedule, and will continue for the period set forth on such Pricing Schedule, subject to adjustment pursuant to Section 2.3(a) (for User-based licenses) and any renewal, as described in this Section 10.1 (collectively, the “License Term”). Each Solution license will automatically renew (i) for the renewal period specified on the applicable Pricing Schedule, if any, or, if not specified, for a period of one year and (ii) at the same terms and Fees applicable during the immediately preceding term unless either party notifies the other at least 30 days prior to the commencement of the renewal term that it does not intend to renew the License Term upon the same terms or Fees.
10.2 Term and Termination.
This Agreement shall continue in effect until terminated as set forth herein. The initial License Term for each license purchased will be as set forth in the applicable Pricing Schedule. This Agreement or any SOW, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five days for breaches of Sections 2.0 or 9.0), or (b) as set forth in Section 7.0.
Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have under this Agreement, (a) all rights licensed and obligations required hereunder shall immediately cease; provided that Sections 2.4, 5.0 through 11.0, 14.0 and 15.0 and any other provisions with express survival language shall survive termination, (b) Customer will promptly delete and destroy all instances of the Solution in its possession or control, and (c) Customer shall pay to Jive any outstanding Fees that have accrued prior to the date of termination. Customer will have access to Community Data stored in the Solution for 30 days after expiration or termination of this Agreement for the sole purpose of copying such Community Data off the Solution.
11.0 FEES AND PAYMENT.
Subject to the terms and conditions below, all fees for licenses to the Base Platform, Add-Ons, Support Services, and/or Professional Services (collectively, the “Fees”) will be set forth on the applicable Pricing Schedule.
11.2 Payment Terms.
Unless otherwise agreed to in writing by the parties including in a Pricing Schedule, Customer will pay to Jive or the Reseller, as applicable, all undisputed Fees owed within 30 days of the date of the invoice pertaining thereto. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude, (and Customer is responsible for), any and all applicable sales, use and other taxes (other than taxes based on Jive’s income). Each party is responsible for its own expenses under this Agreement unless otherwise set forth in an SOW or Pricing Schedule.
Jive, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$2,000,000 per occurrence combined single limit, (b) Commercial Automobile Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence combined single limit, (c) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment, (d) Errors and Omissions Insurance with coverage in an amount equal to or greater than US$2,000,000 per occurrence combined single limit and (e) Umbrella/Excess Liability Insurance with coverage in an amount equal to or greater than US$5,000,000 per occurrence combined single limit. Jive will provide Customer with necessary documentation, including certificates of insurance, evidencing the required coverage, if requested in writing.
Not more than once each year, Jive will have the right to perform an audit to verify that Customer is using the Solution in compliance with this Agreement. The audit will be performed during normal business hours upon not less than 15 days’ prior written notice to Customer. The audit will be conducted at Jive’s sole cost and expense and will be subject to reasonable security and access restrictions. Customer will be permitted to have Customer personnel present during the audit. If an audit conducted under this Section discloses that Customer has underpaid by more than 5% any license Fees payable under this Agreement during the period covered by the audit, Customer will pay Jive the amount of that underpayment and, in addition, will reimburse Jive’s reasonable and actual costs for that audit.
14.0 USAGE DATA.
Jive may collect and use data pertaining to the use of the Hosted Service (“Usage Data”). Any Usage Data collected will be anonymous without reference to the particular User. Jive may use the Usage Data for its internal research and development purposes and may disclose Usage Data in an aggregated format that in no way identifies Customer or any particular User (e.g. Jive may disclose aggregate Page Views statistics for all of its hosted customers).
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Santa Clara County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non convenient or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Addenda and Pricing Schedules agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Jive. The terms on any purchase order or similar document submitted by Customer to Jive will have no effect and are hereby rejected. Unless otherwise expressly stated, all legal notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its official headquarters to the attention of the chief legal officer and are deemed delivered when received. This Agreement may be executed in counterparts.