END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING TECHNOLOGY AND SERVICES OFFERED BY ORTHOGONAL NETWORKS, INC. (“COMPANY”, D/B/A “JELLYFISH”). THIS AGREEMENT APPLIES TO ANY TECHNOLOGY AND ANY RELATED SERVICES THAT JELLYFISH PROVIDES OR MAKES AVAILABLE WITH THIS AGREEMENT (COLLECTIVELY, THE “SERVICES”), UNLESS YOU HAVE EXECUTED, OR ENTER INTO, A WRITTEN AGREEMENT WITH JELLYFISH THAT EXPRESSLY PROVIDES OTHERWISE.
BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER” OR “YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANY OTHER ENTITY YOU REPRESENT IN RELATION TO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF AND THE RIGHT TO BIND CUSTOMER THERETO. USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SERVICES.
1.1 Subject to Customer’s compliance with the terms and conditions of this Agreement, Jellyfish hereby grants Customer for the term of this Agreement a non-exclusive, non-transferable, limited right and license (without the right to sublicense) to access and use the Services solely for its own internal business purposes. The Services are subject to modification from time to time at Jellyfish’s sole discretion, for any purpose deemed appropriate by Jellyfish.
1.2 Jellyfish reserves the right to suspend or limit Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, (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.
2.1 Customer will not, and will not permit any third party or authorized user to: (i) 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); (ii) copy, modify, translate, or create derivative works based on the Services or Software; (iii) 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.
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 the Services.
2.3 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’s account with or without Customer’s knowledge or consent.
2.4 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.
2.5 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.
3.1 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).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) 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 Secton 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 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.
3.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure of such terms and conditions is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made by a party on a confidential basis as reasonably necessary to potential investors or acquirors or other third parties in connection with any due diligence of such party.
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 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 intellectual property rights.
4.2 Jellyfish may obtain and process certain content/data provided by or on behalf of Customer (“Content”) to provide the Services 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 such Content including all necessary rights to upload, submit, or provide any Content uploaded, submitted or provided to the Services. Customer further represents and warrants that use of such Content as contemplated under this Agreement does not and will not (a) 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 (b) 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 Customer acknowledges and agrees that Jellyfish may (i) internally use and modify 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.
5.1 This Agreement shall commence on Customer’s acceptance of this Agreement and continue unless this Agreement is terminated in accordance herewith. Without limiting the foregoing, either party may terminate this Agreement immediately upon notice to the other for any reason or no reason at all.
5.2 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, restrictions, confidentiality obligations, intellectual property rights, warranty disclaimers, indemnifications, and limitations of liability.
6.1 THE SERVICES AND JELLYFISH PROPRIETARY INFORMATION AND ANYTHING PROVIDED BY JELLYFISH IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND. JELLYFISH (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, 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.
6.2 JELLYFISH (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE, UNINTERRUPTED, TIMELY, OR ERROR-FREE; (II) THE SERVICES OR ANY SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (III) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
7.1 IN NO EVENT WILL JELLYFISH BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, OR THE DELAY OR INABILITY TO USE THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF JELLYFISH HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
7.2 THE TOTAL LIABILITY OF JELLYFISH, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, $100.00. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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 (b) Customer’s use of or access to 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 awarded against the Jellyfish Indemnitees and any amounts paid by the Jellyfish Indemnitees under a court-approved settlement of a Claim Against Jellyfish.
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. This Agreement is personal to Customer, and is not assignable, transferable or sublicensable by Customer except with Jellyfish’s prior written consent. Jellyfish may assign, transfer or delegate any of its rights and obligations hereunder without consent. Both parties agree that this Agreement 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. 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. 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. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Jellyfish. Jellyfish is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.