Jacobson Consulting Applications, Inc. D/B/A JCA
Terms and Conditions for Vivian Software
1. DEFINITIONS AND INTERPRETATIONS
1.1. The definitions and rules of interpretation in this clause apply in this Agreement.
Vivian Software means the software as a service that is owned by Us and made available to You under this Agreement over the internet and specified in the applicable Order Specifications, as does the term “Software”;
Agreement means the agreement between JCA and You for the licensing of the Software and the supply of the Services, comprising the Order Specification and these Terms and Conditions;
Business Days means Monday to Friday excluding public holidays;
Business Hours means the hours of 9am to 6pm Eastern Time on Business Days;
Consulting Services means the consulting services specified in an applicable Order Specification and may include, but not be limited to, implementation, configuration, training, integration and/or general IT consulting services;
Customer System means Your computer equipment, operating system, computer network infrastructure hardware and associated telecom links and networks;
Documentation means documents or online help (provided in any media) relating to the Software;
Effective Date means the date specified in the Order Specification, representing the commencement of the parties’ obligations under this Agreement;
Fees means the License Fee and fees for Consulting Services or any of them and any other fees, charges costs and expenses paid or payable under this Agreement by You;
Free Trial Product means the Software that We have designated as “beta,” “trial,” “evaluation,” “proof of concept (POC),” “freemium,” or by a similar designation;
Intellectual Property Rights means all intellectual and industrial property rights, including patents, trademarks, logos, brand, company names, rights in databases, rights in designs, inventions, discoveries, know-how and copyrights (including rights in computer software) (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
License Fee means the fee for the License, software maintenance and support as set out in clause 3.1 and relevant Order Specification;
License means the permission granted to the Licensee to Use the Software under the terms of this Agreement during the period for which the License Fee has been paid;
License Term means the total period for which You hold a valid License;
Licensee means You and/or the Permitted Users;
Order Specification means each agreement specifying the Software and Services to be supplied under this Agreement (together with any Schedules), which forms part of this Agreement and shall be attached to it;
Permitted Users means the permitted users of the Software, as set out in the Order Specification, which may include, but is not limited to, Licensee’s employees, consultants, independent contractors, or consortium members;
Schedule(s) means the document or series of documents attached to and forming part of the Order Specification, containing detailed information or data as specified elsewhere in the Order Specification;
Services means the Technical Support and/or Consulting Services, to be provided by Us and as set out in Order Specifications;
Technical Support means technical support in relation to the operation of the Software;
Technical Support Designee means Permitted Users allowed to request Technical Support on behalf of Licensee, as set out in the Order Specification;
Use means the restricted use of and access to the Software by the Permitted Users (unless otherwise agreed in writing by Us) in object code form by storing, accessing, running and/or loading the Software on the Customer System to process instructions in the Software as agreed between the parties and the Documentation;
We means JCA, as do the terms “Us” and “Our;”
You means the Licensee of the Vivian Software, as do the terms “Your” and “Yours.”
2. TERM AND ORDER SPECIFICATION
2.1. This agreement is a primary agreement, the terms of which are to be incorporated into, or supplemented by, any number of Order Specifications which are, or may be, attached. Each Order Specification constitutes a separate agreement on the terms of this primary agreement. Termination of any one Order Specification shall not affect termination of any other Order Specification. The limitations of liability in clause 10 cover this Agreement including all the Order Specification in aggregate.
2.2. Each Order Specification, together with any Schedules will form a separate and independent contract for the applicable transaction between us and will commence on the date on which it is signed by both parties.
2.3. If there is any conflict or inconsistency between any provision of this primary agreement and any Order Specification, the terms of the primary agreement shall prevail unless specifically stated in writing in an Order Specification with reference to this clause.
3. SOFTWARE
3.1 In consideration of and conditional upon the payment of the License Fee to Us, We grant the Licensee a non-exclusive, revocable, non-transferable License to Use the Software, commencing on the Effective Date and continuing for the License Term.
3.2 Licensee shall not sub-license the Software without Our express written consent in an applicable Order Specification. All sub-licensees of Licensee must execute a Vivian Software Consortium Member Agreement in order to be granted access to the Software.
3.3 The License Term shall be for one (1) year from the Effective Date unless otherwise noted in the Order Specification and automatically renew for subsequent periods of twelve (12) months unless You provide thirty (30) days’ advance written notice to Us of your intention not to renew. The Software may not be Used unless the License Fee is paid in full in advance of the start of a subsequent period.
3.4 The Software is licensed for Use to the Permitted Users as set out in the applicable Order Specification. We reserve the right to charge an additional License Fee if you need to increase the number of Permitted Users.
3.5 Unless explicitly stated otherwise in an applicable Order Specification, the License covers the Use of the Software where the data resides in a central data store. Use of the Software is limited to the processing of Your own data.
3.6 During the first twelve (12) months of this Agreement and upon each renewal, You shall be entitled to receive an annual set number of training hours as defined by Our then current Vivian Membership Benefits by Tier (Schedule A), to be conducted remotely by Us.
3.7. You shall protect and keep confidential all passwords and credentials and shall be responsible for all use of the Software and/or Services that occurs under your passwords and credentials whether or not such use was by You, on Your behalf or authorized by You. You shall indemnify Us and hold Us harmless against any costs, losses, expenses or damages that We suffer or incur as a result of any breach of this clause or any misuse of any of Your passwords or credentials, including, but not limited to, any third-party costs.
3.8. You acknowledge that the Vivian Software, and associated documentation, are provided on an “as is” basis. We assume no responsibility or liability for any potential loss of revenue from the Software’s recommendations.
3.9. You shall not (nor permit any third-party to) disassemble, decompile, modify, adapt, reverse engineer, merge or make error corrections to the Software, in whole or in part, or in any way expose the source code, instruction sequences, internal logic, protocols, or algorithms of the Software. You may access the Software only through published interfaces using authorized logins. Nothing in this clause shall prevent You from configuring interfaces and other elements in the Software which are intended to be configured by You.
3.10. We shall notify You of all major version upgrades to the Software via email to each registered user.
3.11. We shall use reasonable endeavors in accordance with good industry practice to prevent the introduction of known computer viruses or other program code which is likely to damage the Software or the Customer System. You will use reasonable endeavors in accordance with good industry practice to prevent the introduction of any known computer viruses into the Customer System and will check each release of the Software with the same diligence as would be expected from an organization similar to You using current virus scanning software from time to time.
4. SOFTWARE PERFORMANCE
4.1. We warrant that the Software will, when used in accordance with the Documentation, operate in all material respects in accordance with the Documentation and Order Specification (where applicable). We will obtain and, at all times during the term of the Agreement, maintain all necessary licenses and consents, and comply with all applicable laws and regulations relating to the Software. For the avoidance of doubt, We do not warrant that the operation of the Software will be uninterrupted or error free.
4.2. Software response times may be subject to Your own IT systems specification, and as such cannot be guaranteed or underwritten by Us. You are solely responsible for the Customer System, its suitability, compatibility with the Software and for ensuring that it fully meets Your business requirements.
4.3. We will use all reasonable efforts to ensure that the Software is available for 99.7% of each calendar month. The Service will be deemed unavailable if it cannot be reached from a functioning internet connection. Any instances of unavailability shall have to be ratified by Our monitoring system. The Software shall not be deemed unavailable (without limitation) in the event of any of the following:
4.3.1. Periods of scheduled maintenance;
4.3.2. Failure by You or Permitted Users’ connection to the Network (e.g. via the public internet or Your own network, or any third-party telecommunications tail circuits);
4.3.3. Malfunction of Yours or Permitted Users’ own computing systems;
4.3.4. Force majeure events beyond Our control, including, without limitation, failure to furnish necessary information, sabotage, war, terrorist activities, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, epidemic, pandemic (including COVID-19), the acts, orders or recommendations by any governmental or public agency or authority, or technical failures;
4.3.5. Microsoft Azure outages.
4.4. The warranty given under clause 4.1 does not cover, and We shall have no liability for, persistent or material defects or failures in the Software caused by:
4.4.1. any fault in the Customer System that prevents the Software working in or with the Customer System;
4.4.2. the Licensee’s failure to use the Software in accordance with the Documentation or terms specified in the Order Specification;
4.5. The provision of the warranty in clause 4.1 is further dependent on You having a current and valid fully paid up License including Technical Support for the Software or having paid all Fees up to date.
5. SERVICES
In the event that You elect to receive Services from Us, this clause 5 shall apply in respect of such Services specified in the applicable Order Specification.
5.1 TECHNICAL SUPPORT
5.1.1. Technical Support shall start on the Effective Date and continue during the License Term, subject to the payment of the relevant fee.
5.1.2. Technical Support will be provided during Support Hours being Business Hours other than during public holidays.
5.1.3. We will provide Technical Support to Permitted Users who have undertaken training. You will appoint Technical Support Designees with all the necessary authority to bind Your Company and who shall consolidate the queries of Permitted Users and be the prime contact for Technical Support to ensure smooth communications.
5.1.4. Our obligation to provide Technical Support shall not extend to:
5.1.4.1. rectification of lost or corrupted data arising by reason other than Our negligence;
5.1.4.2. attendance to faults caused by Your failure to use the supported Software in accordance with the requirements of the Documentation and/or documentation or manuals supplied with the supported Software, or caused by operator error or omission;
5.1.4.3. attendance to faults attributable to faults in the Customer System or its use or interaction with other software with which the Software is not compatible or its use or interaction with software or on equipment that We have not approved in writing.
5.2. CONSULTING SERVICES
5.2.1. We will perform the Consulting Services specified in the applicable Order Specification.
5.2.2. Except as expressly set forth herein, We do not make any warranty, express or implied, with respect to the services rendered by Us or Our personnel or the results obtained from Our work, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
6. FEES AND PAYMENT
6.1. You agree to pay the Fees for the Software and Services without deduction or set off and in accordance with the terms specified in each Order Specification.
6.2. You must pay the License Fees for the entire term prior to Using the Software and You shall pay any subsequent License or Services fees within 30 days of invoice. License Fees are non-refundable.
6.3. We have the right to increase all Fees annually.
6.4. We reserve the right to suspend the supply and/or access to the Software and/or Services to You where any undisputed amounts owed under this Agreement are overdue until all such amounts have been paid in full.
7. DATA PROTECTION
7.1. You shall ensure that You are entitled to transfer Your relevant data to Us so that We may lawfully process the data in accordance with the Agreement on Your behalf.
7.2. You acknowledge and agree to be bound by the terms of Our Vivian Software Privacy and Data Use Policy, as may be amended from time to time, a copy of which is available at https://www.jcainc.com/vivian-software-privacy-and-data-use-policy.
7.3. We shall process Your data only in accordance with the terms of the Agreement and any written instructions given by You from time to time. We shall keep a record of any processing of Your data.
7.4. Should We receive a request, complaint, notice or communication which relates directly to the processing of Your data, We shall immediately notify You and provide you with such assistance as is required to enable You to comply and or respond to any such request, complaint, notice or communication.
7.5. We hereby confirm that all Your data shall be Your property. Nothing in this Agreement is intended to transfer any aspect of ownership in Your data to Us.
7.6. Any data while in transit will be protected through suitable encryption.
7.7. We shall notify You as soon as is practicable upon Our becoming aware of any unauthorized or unlawful processing, loss of, damage to or destruction of any data.
7.8. We agree that any confidential information provided to Us by You and no longer needed by Us in connection with the Software shall be destroyed upon Your written direction.
8. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
8.1. You acknowledge that all Intellectual property Rights (including any new Intellectual Property Rights) arising out of or in connection with the Software, Services and Documentation supplied belong at all times to Us or Our licensors.
8.2. Nothing in this Agreement shall transfer any Intellectual Property Rights in or arising from the Software, Services or Documentation to You but that these shall remain vested in Us or Our licensors, and no rights to use any such Intellectual Property Rights are granted, except as expressly stated in this Agreement or the relevant Order Specification.
8.3. We warrant that We are not aware that the Software, any Documentation, information, data, computer facilities or material that We supply, or any provision of the Services or Your use of the same in accordance with the terms of this Agreement will infringe any third-party’s Intellectual Property Rights but We have not carried out any investigation into the same. We shall indemnify You against all direct costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever nature incurred by or awarded against You arising out of or in connection with any breach of the warranty contained in this clause 8.3.
9. TERMINATION AND SUSPENSION
9.1. If a party is in material breach of its obligations under this Agreement which is incapable of remedy or if capable of remedy, fails to remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by the other party, the other party may, without prejudice to its other rights and remedies and at its option terminate the Agreement or the affected Order Specification as a whole, or any affected element of the Software or Services provided under it.
9.2. If a party is in material breach of its obligations under any Order Specification which is incapable of remedy or if capable of remedy, fails to remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by the other party, the other party may, without prejudice to its other rights and remedies and at its option, terminate the affected Order Specification as a whole, or any affected element of the Software or Services provided under it.
9.3. The termination of this Agreement or any Order Specification in whole or in part for whatever reason shall not affect any provision of this Agreement which is expressed, or by its nature, implied to continue, survive or come into force in the event of such termination.
9.4. Upon termination of this Agreement or any Order Specification in whole or in part for any reason other than pursuant to clause 9.3:
9.4.1. the parties shall (without prejudice to any other rights and remedies) promptly pay to each other all sums which are due or outstanding in respect of part of the Agreement or Order Specification that has been terminated; and
9.4.2. You shall cease all access and use of the Software; and
9.4.3. unless necessary in order that We may continue to perform Our obligations, We shall terminate all access to the Software.
10. LIMITATION OF LIABILITY
10.1. Subject to clause 10.3, neither party’s total aggregate liability to the other party will exceed the actual Fees paid and owed to Us by You under this agreement during the twelve (12) months immediately preceding the claim.
10.2. Subject to clause 10.3, neither party shall be liable for any misrepresentation (other than fraudulent misrepresentation), loss of profits, loss of business, depletion of goodwill and similar losses, loss of anticipated savings, loss of goods, loss of contract or loss of use (in each case whether direct or indirect) nor for any consequential, incidental, special or indirect damages, or for acts of negligence that are not intentional or reckless in nature, regardless of whether the party has been advised of the possibility of such damages. We shall not be liable for any loss or corruption of data or information, whether direct or indirect.
10.3. Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from negligence; fraud; or any other liability which may not be properly limited or excluded under applicable law nor in respect of the indemnities given in clause 8.3 nor Your obligation or liability to pay all and any of the Fees under this Agreement.
11. INSURANCE
11.1. We shall obtain and maintain, at Our sole expense, for the entire term of this Agreement, Commercial General Liability insurance coverage of $1,000,000 per occurrence and $2,000,000 annual aggregate, and Technology Errors and Omissions Liability insurance coverage of $2,000,000 per occurrence and annual aggregate. We must provide Licensee with a certificate of insurance upon request, verifying that all required policies are in place and meet the specified limits. This insurance shall not be reduced or canceled without at least thirty (30) days’ prior written notice to Licensee.
12. DISPUTES
12.1. This clause shall not apply to any unpaid Fees which, for the avoidance of any doubt, shall deemed to be a material breach and shall be dealt with under clause 9.1 or 9.2 as applicable. If a dispute arises between You and Us in relation to any other matter, the representatives for each of us in relation to the applicable Order Specification shall, in the first instance attempt to agree on a resolution for such dispute. If, after sixty (60) days (or such other time as the parties may agree in writing), such representatives, each acting reasonably, are unable to resolve the dispute, You and We shall arrange for a senior representative to attend one or more meetings solely in order to resolve the matter in dispute. Such meetings shall be conducted in such manner and at such venue (including a meeting conducted over the telephone) as to promote a consensual resolution of the dispute in question.
12.2. If the senior representatives are unable to resolve the matter in question within sixty (60) days (or such other time as the parties may agree in writing) then it shall be subject to binding arbitration under the then-current rules of the American Arbitration Association (“AAA”). The arbitration shall be heard and determined by a single arbitrator who is knowledgeable in the field of technology services. The arbitration shall be held in New York County, New York, unless the parties mutually agree otherwise. The arbitrator’s decision will be final and binding, and either party may enter it in any court with jurisdiction. Each party will bear its own attorneys’ fees and related costs associated with the arbitration. Notwithstanding the foregoing, both parties retain the right to obtain an injunction or other equitable relief in court to prevent the misuse of the other party’s confidential information or its intellectual property.
13. GENERAL
13.1. We may change these Terms and Conditions from time to time and will notify You of any changes by posting them on Our website or via Our newsletter or email. Any changes will be effective immediately upon such notice. If You use the Services/Software after notice of the changes to the Terms and Conditions, You will be taken to have agreed to the changes.
13.2. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may be held by any body of competent jurisdiction to be illegal invalid or unenforceable, the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
13.3. This Agreement will be governed by and construed in accordance with the laws of the State of New York, and the venue of any dispute shall be in the City, State and County of New York.
13.4. This Agreement constitutes the entire agreement between You and Us with respect to the subject matter of this Agreement and supersedes any and all prior agreements.
13.5. You agree that We may refer to You as a client and as a user of Software as applicable in Our marketing and public relations materials.
13.6. If You use a product or functionality that We make available to You to try at Your option, at no additional charge, and which is designated a Free Trial Product, then the applicable provisions of this Agreement will govern that Free Trial Product (unless otherwise agreed), and We will make such Free Trial Product available to You on a trial basis, free of charge, until the earlier of (i) the end of the free trial period for which You agreed to use such Free Trial Product, (ii) the start date of any subscription purchased by You for such product or service, or (iii) termination of the Free Trial Product by Us in Our sole discretion. A free trial period may be extended upon mutual agreement by Us and You. Notwithstanding anything to the contrary in this Agreement, a Free Trial Product is provided “AS IS.” WE MAKE NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL PRODUCT. WE SHALL NOT HAVE ANY LIABILITY FOR YOUR USE OF THE FREE TRIAL PRODUCTS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY (NOTWITHSTANDING ANY LIMITATION OF LIABILITY CONTAINED ELSEWHERE HEREIN), UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL PRODUCT IS $100. ANY DATA AND CONFIGURATIONS ENTERED INTO YOUR FREE TRIAL PRODUCT ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL PRODUCT TERM.
13.7. Neither Party shall assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably delayed or withheld provided that We may transfer or assign this Agreement to any successor in interest in the event of a sale or merger, such transfer or assignment to be effective upon written notice to You.
13.8. Neither of us shall, without the prior written consent of the other party (during and after termination of this Agreement), use (other than in the performance of this Agreement) or disclose to any other person any Confidential Information of the other party, except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required (though only to the extent required) by law, court order or any legal or regulatory authority.
14. NOTICES
14.1. Any notices to be given hereunder by either party to the other may be effected either by (i) personal delivery in writing (ii) by mail, registered or certified, postage prepaid with return receipt requested, or (iii) by electronic mail (“email”). Mailed notices shall be addressed to the parties at the addresses set forth in the Order Specification, but each party may change such address by written notice to the other. Notices delivered personally will be deemed made as of actual receipt. Mailed notices will be deemed communicated as of two days after mailing. Notices communicated by email will be deemed to have been delivered and received.