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Terms of Conditions

ORTHOGONAL NETWORKS, INC. D/B/A JELLYFISH (“JELLYFISH” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT (EACH AN “ORDER FORM”) WITH JELLYFISH THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”).    THIS AGREEMENT SHALL APPLY TO YOUR USE OF ANY JELLYFISH WEBSITE, SOFTWARE, and any other products, services, features, content and applications offered by JELLYFISH HEREUNDER.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR EMPLOYER TO THE TERMS OF THE ORDER FORM AND THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “CUSTOMER” REFERENCED BELOW REFERS TO YOUR EMPLOYER.

1. SERVICES AND SUPPORT

1.1  Subject to the terms and conditions of this Agreement, Jellyfish will use commercially reasonable efforts to provide its service as specified on an Order Form executed by both Jellyfish and Customer (the “Services”) through the internet. The Services are subject to modification from time to time at Jellyfish’s sole discretion, for any purpose deemed appropriate by Jellyfish. Jellyfish will use reasonable efforts to give Customer prior written notice of any such modification to the extent material. Notwithstanding the foregoing or anything herein to the contrary, in the event that such changes remove (without a substitute) or otherwise materially adversely affects any of the material features or functionality of the Services, then Customer may notify Jellyfish in writing that it intends to terminate its subscription to the Services, provided that such notice is provided to Jellyfish within thirty (30) days after Customer receives notice of such changes. If upon receiving Customer’s notice Jellyfish fails to remove such adverse changes and restore the applicable features and functionality to the Services within thirty (30) days of receiving Customer’s notice then Customer may as its sole remedy, terminate this Agreement for convenience upon written notice to Jellyfish (in which case Customer shall be entitled to receive a refund of any prepaid, unused fees remaining as of the effective date of termination for the balance of the unexpired current Service Term as specified in the Order Form).

1.2  Subject to the terms and conditions of this Agreement, Jellyfish hereby grants Customer for the term of the applicable Order Form a non-exclusive, non-transferable, limited right and license (without the right to sublicense) to access the Jellyfish software for use solely in connection with Customer’s authorized use of the Services.

1.3  Jellyfish will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Jellyfish reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Jellyfish, (iii) if Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services that could interfere with Jellyfish’s ability to provide access to the Services to other users, or (iv) if Jellyfish receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Jellyfish to suspend or terminate Customer and/or any authorized user’s access to the Services.

1.4  Subject to the terms and conditions of this Agreement, Jellyfish will provide reasonable support to Customer for the Services from Monday through Friday during Jellyfish’s normal business hours.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1  Customer will not, and will not permit any third party or authorized user to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); copy, modify, translate, or create derivative works based on the Services or Software; use the Services or Software for any purpose other than its own internal use for its own benefit; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights. Notwithstanding anything to the contrary in this Agreement, the Services and Software are deemed to be Proprietary Information (as defined below) of Jellyfish, and Customer will comply with the terms and conditions of Section 3 with respect thereto.

2.2  Customer will cooperate with Jellyfish in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Jellyfish may reasonably request. Customer will also cooperate with Jellyfish in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions or other functions of the Services.

2.3  Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Jellyfish.

2.4  Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

2.5  Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Jellyfish is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Jellyfish does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

2.6  Customer shall not remove or export from the United States or allow the export or re-export of the Software, Services or anything related thereto in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

3. CONFIDENTIALITY

3.1  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information, that is marked or otherwise identified as proprietary or confidential at the time of disclosure, relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The pricing and fees set forth on the Order Form shall be deemed Proprietary Information.

3.2  The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees, independent contractors, or service providers with a need to have access thereto for purposes of this Agreement and who are bound by obligations of confidentiality substantially and materially similar to those in this Section 3, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Receiving Party shall be responsible for any breaches of confidentiality by any of its employees, independent contractors, and service providers. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to allow the Disclosing Party to contest such order, and reasonably cooperates with the Disclosing Party in its efforts to contest or limit such disclosure.

4. INTELLECTUAL PROPERTY RIGHTS

4.1  Except as expressly set forth herein, Jellyfish alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software or any improvements or other modifications thereto or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the Software, which are hereby assigned to Jellyfish. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software or any improvements or other modifications thereto, or any intellectual property rights.

4.2  Jellyfish will obtain and process certain content/data provided by or on behalf of Customer (“Content”) to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. Customer further represents and warrants that use of such Content as contemplated under this Agreement does not and will not (i) infringe upon the rights of any third party including, but not limited to trademark, copyright, patent, trade secret or other intellectual property or confidentiality rights, or (ii) breach any of Customer’s obligations to any third parties, including without limitation, applicable privacy laws. Jellyfish is not responsible to Customer for unauthorized access to Content or the unauthorized use of the Services unless such access is due to Jellyfish’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use.

4.3  Notwithstanding anything to the contrary, Customer acknowledges and agrees that Jellyfish may (i) internally use and modify (but not disclose) Content for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Jellyfish’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Jellyfish’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Jellyfish in connection with Customer’s use of the Services, but only in aggregate, anonymized form.

4.4  If Jellyfish receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Jellyfish may (but is not required to) limit, suspend, or terminate activity hereunder with respect to that Content.

5. PAYMENT OF FEES

5.1  Customer will pay Jellyfish the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay Jellyfish for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of Customer’s receipt of the invoice and, except as expressly set forth in this Agreement, are nonrefundable.

5.2  Unpaid Fees not subject to a good faith dispute are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Jellyfish’s net income) unless Customer has provided Jellyfish with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

6. TERMINATION

6.1  Subject to earlier termination as provided below, this Agreement shall remain in effect for the Service Term of each applicable Order Form. The Service Term shall be specified in the Order Form.

6.2  In the event of any material breach of this Agreement or such Order Form (including any failure to pay), the non-breaching party may terminate this Agreement and such Order Form prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement and such Order Form will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement and the applicable Order Form, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

6.3  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnifications, and limitations of liability.

7. WARRANTY DISCLAIMER

7.1  Jellyfish warrants that during the term of any Service Order for the Services, Jellyfish will perform its obligations hereunder in a professional and workmanlike manner in accordance with industry standards. As Customer’s sole and exclusive remedy for a material breach of the above warranty, Jellyfish will, at no additional cost to Customer, re-perform the applicable obligations to enable Jellyfish to conform to the warranty. The Customer will provide Jellyfish with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any breaches. Such warranty shall only apply if the Services have been utilized by the Customer in accordance with this Agreement.

7.2  EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES, SOFTWARE, JELLYFISH PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, JELLYFISH (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY

EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2.1 OR 5, IN NO EVENT WILL CUSTOMER OR JELLYFISH (OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CUSTOMER OR JELLYFISH HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF JELLYFISH, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO JELLYFISH HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. INDEMNIFICATION

9.1.  Jellyfish will defend Customer, and its officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by an unaffiliated third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages, reasonable attorney fees and costs finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by Customer under a court-approved settlement, of a Claim Against Customer. Jellyfish’s indemnification obligations do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data not created or provided by Jellyfish (including without limitation any Content), (ii) any part of the Services made in whole or in part in accordance to Customer specifications, (iii) any modifications made after delivery by Jellyfish, (iv) any combination with other products, processes or materials not provided by Jellyfish (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith. If a Claim Against Customer is brought or is likely, in Jellyfish’s sole opinion, to be brought, Jellyfish will, at its option and expense (A) obtain the right for Customer to continue using the Services; (B) replace or modify the affected Services so that they become non-infringing without loss of material functionality; or (C) upon notice to Customer, terminate this Agreement or Customer’s use of the affected Services, provided that Jellyfish promptly refunds to Customer the prorated portion of any unearned pre-paid annual subscription fees paid hereunder for the affected Services. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Content, or Customer’s breach of this Agreement.

9.2  Customer will defend Jellyfish and its officers, directors, employees and agents (collectively, the “Jellyfish Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Jellyfish Indemnitees by a third party arising from or related to (a) the Content or any use thereof in accordance with this Agreement or (b) Customer’s use of any Services in breach of this Agreement (a “Claim Against Jellyfish”), and will indemnify the Jellyfish Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Jellyfish Indemnitees as a result of, or for any amounts paid by the Jellyfish Indemnitees under a court-approved settlement of, a Claim Against Jellyfish.

9.3  Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (i) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (ii) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (iii) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

9.4  This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

10. MISCELLANEOUS

10.1  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as expressly stated in this Agreement, neither party may otherwise assign this Agreement or any of its rights or obligations hereunder either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates. Subject to the foregoing, this Agreement shall be binding upon and for the benefit of Jellyfish, the Customer and their permitted successors and assigns. Both parties agree that this Agreement along with the Order Forms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the provisions of this Agreement and the provisions on the Order Form, the provisions of the Order Form will control. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Jellyfish in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid to the address set forth on the applicable Order Form. Jellyfish will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Middlesex County, Massachusetts, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Unless otherwise set forth on the Order Form, Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Jellyfish. Unless otherwise set forth on the Order Form, Jellyfish is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.