Master license & services agreement
Last Updated: December 1, 2017
1. Parties; Entire Contract. This Master License and Services Agreement (“Agreement”) is between Jottful, LLC, a Michigan limited liability company (“Jottful”) and you, as the Jottful customer purchasing access to the Services (“Customer”). The following documents comprise the entire contract between the parties: (a) this Agreement; (b) Statement(s) of Work in the form presented to Customer when any Services (as defined below) are being purchased by Customer (each, a “SOW”); and (c) system requirements and description of features (including technical specifications), functions, and instructions for use as set forth in any Statement of Work (“System Requirements”).
2. Purpose. Jottful has created certain web design and content management software that provides clients with website design, hosting services and certain content management services (collectively, the “Platform”) and certain business support services (together with the Platform, the “Services”). This Agreement and each SOW contain the terms and conditions for Customer’s access to the Services and under which Jottful will provide services to Customer.
3. Effective Date; Term.
3.1 Acceptance of Terms. This Agreement is effective upon receipt by Jottful of this Agreement signed by Customer (the “Effective Date”). This Agreement is “signed” when Customer orders a Plan and creates an account to access the Services through Jottful’s online ordering process.
3.2 Trial. Customer may, upon Jottful’s prior consent, have an evaluation period as specified in the order process (the “Trial Period”) during which Customer shall have access to the Services pursuant to the license in Section 6 below. Customer shall select a service plan for access to the Services (a “Plan”) during the Trial Period. Unless Customer notifies Jottful of its intent to terminate this Agreement in writing before the expiration of Trial Period, the Customer’s Plan will be automatically converted to a subscription for the Term set forth in Section 3.3 below upon expiration of the Trial Period.
3.3 Term; Renewal. The initial term of this Agreement shall commence on the Effective Date or, if Customer has been provided with a Trial Period pursuant to Section 3.2 above, on the expiration of the Trial Period, and shall last for the period listed on the Plan order screen (the “Initial Term”), unless earlier terminated in accordance with this Agreement. The term shall continue for consecutive periods of time equal to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”). Customer may terminate this Agreement at any time by: (i) canceling Customer’s Plan through the account screen on the Platform, or (ii) emailing at least four (4) days before the first day of any Renewal Term. Prior to the expiration of the then-current term, Jottful (or a third party service provider engaged by Jottful) shall invoice Customer for the subscription fee for the Renewal Term. Payment of such invoice shall entitle Customer and its Users (as defined below) to ongoing access to the Services.
3.4 AUTO-RENEWAL. UNLESS OTHERWISE SET FORTH WHEN PURCHASING A PLAN, THE CUSTOMER’S PLAN IS SET TO AUTO-RENEW AND JOTTFUL MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL TERM, UNLESS THE CUSTOMER NOTIFIES JOTTFUL THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL USING THE PROCESS IN SECTION 3.3 ABOVE.
4. Plans and Fees.
4.1 Plans and Fees. Customer must select a Plan in order for Customer and its Users (as defined below) to use and access the Services, which Plan shall be set forth in the applicable SOW. The fees for the Plan, the use of and access to the Services and the services provided by Jottful hereunder are set forth in the applicable SOW. Different fees apply to different services and Plans. The applicable fees are charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All fees are non-refundable, i.e. there are no refunds or credits for periods where the Customer did not use the Services, used the Services only partially, deactivated their account to use the Services, or terminated this Agreement during the Term. If, after the Effective Date, Customer elects to upgrade to a more expensive Plan, the unused portion of any prepaid fees shall be applied to the fee of the more expensive Plan. All fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Customer is solely responsible for the payment of such taxes, levies or duties. Fees are subject to change in Jottful’s sole discretion. All fees stated are in U.S. dollars.
4.2 Changing Plans. The customer has the right to change its Plan to a new Plan offered by Jottful at any time by using Jottful’s customer portal. The new Plan will be made available to Customer as soon as commercially practicable, but in no event, more than seven (7) days after Customer elects to change its Plan. UPON CUSTOMER’S ELECTION TO CHANGE THEIR PLAN, CUSTOMER’S CREDIT CARD ON FILE WITH JOTTFUL WILL BE AUTOMATICALLY CHARGED WITH THE APPLICABLE FEE FOR THE NEW PLAN; PROVIDED THAT IN THE EVENT CUSTOMER UPGRADES TO A MORE EXPENSIVE PLAN, CUSTOMER’S CREDIT CARD ON FILE WITH JOTTFUL WILL BE AUTOMATICALLY CHARGED A PRO-RATED AMOUNT BASED ON THE UNUSED PORTION OF ANY PREPAID FEES OF THE OLD PLAN. NO REFUNDS OF PREPAID FEES WILL BE MADE IN THE EVENT CUSTOMER DOWNGRADES ITS PLAN. DOWNGRADING OF THE CURRENT PLAN MAY CAUSE THE LOSS OF PLATFORM FEATURES OR CAPACITY AVAILABLE TO CUSTOMER, AS WELL AS THE LOSS OF CUSTOMER CONTENT AND DATA. Notwithstanding anything herein to the contrary, Jottful shall have the right, in its sole discretion and without amendment to the applicable SOW, to make changes to the functions and features of the Services upon reasonable notice to Customer.
4.3 Non-Payment; Additional Fees. Jottful may suspend Customer’s access to the Services due to nonpayment of overdue amounts. Customer agrees to pay a late fee of one and a half percent (1.5%) per month on all amounts that are overdue, and all attorneys’ fees and expenses relating to Jottful’s efforts to secure payments that are overdue.
4.4 Chargebacks. If, at any time, Jottful (or a third party contracted by Jottful to manage the Services subscriptions and revenue) records a decline, chargeback or other rejection of a charge of any fees due to Jottful for the Platform or Services (a “Chargeback”), Customer’s use of the Platform and Services may be automatically disabled or terminated and Jottful (or its third party contractor) may re-attempt to process any payment due until such payment is received or the Services terminated.
5. Point of Contact. Unless otherwise specified in an SOW, Customer’s main point of contact for all questions and concerns shall be the party set up as the billing contact whose information is provided when purchasing access to the Services. The point of contact may be changed at any time by using the customer portal. The Customer’s point of contact will have appropriate decision-making power related to all aspects of this Agreement.
6. Subscription. Upon the Effective Date, provided that Customer selects a Plan and makes payment of the fees in accordance with this Agreement, for the Term of this Agreement Jottful authorizes Customer and each user permitted to use the Services by Customer (each a “User”) to use the Services for their business purposes. The license granted by this Agreement is nonexclusive, nontransferable, and personal to Customer. Jottful reserves all rights, including intellectual property rights, in the Services and related materials (such as documentation, guides, training materials, and instructional materials). Customer shall use commercially reasonable security measures to prevent unauthorized access to and use of the Services. Except as provided in a SOW, Customer shall be responsible for all third-party applications and all third party costs associated with each User’s access to and use of the Services.
7. Security. Customer will promptly notify Jottful of any suspected breach of security or unauthorized use of the Services. Customer and its Users will have the right to upload individually-identifiable data to the Services (“Data”) and Customer consents to Jottful’s use, storage and dissemination of this Data in connection with this Agreement. Customer shall not assign or transfer its rights in or to the Services. Customer will maintain the confidentiality of all passwords, account numbers or information related to the Services or Customer’s management of the Services to authorized persons. Customer shall cause each of its employees and contractors to maintain the confidentiality of their passwords, account numbers or information related to the Platform.
8. Additional Services. Jottful may provide additional services to Customer outside of the Plan as set forth in an applicable SOWs (the “Additional Services”). Customer may purchase additional Services through Jottful’s website.
9. Customer Content; Representations and Warranties.
9.1 Customer represents and warrants that all content and other materials (“Customer Content”) it discloses or delivers to Jottful for use in connection with this Agreement are the property of Customer, or that Customer has the rights to disclose or deliver the Customer Content to Jottful, and that the Customer Content does not infringe any copyright, trademark, trade secret, patent or other right of any third party.
9.2 Customer hereby indemnifies, holds harmless, and agrees to defend Jottful against all damages, losses, judgments, penalties, expenses, costs, and fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against Jottful in connection with any third party (including domestic or foreign governments or agencies) assertion inconsistent with the promises, statements, representations, and warranties.
10. Use of Services.
10.1 Jottful may use the Data and information Jottful collects from Customer’s and User’s use of the Services as follows: to monitor the security and integrity of the Services, to evaluate the security and integrity of Data or as otherwise required by law. For information that is not identifiable to an individual or entity, Jottful may use such anonymous information to improve and market its products or services.
10.2 Jottful shall: (i) use commercially reasonable efforts to make the Services available, except for: (a) planned downtime (of which Jottful will use commercially reasonable efforts to notify Customer of scheduled downtime of the Services in advance), which Jottful shall schedule to the extent practicable during evening or weekend hours), or (b) any unavailability caused by circumstances beyond Jottful reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, and (ii) provide the Services only in accordance with applicable laws. Nothing in this Agreement shall be construed to directly or indirectly create any liability whatsoever for Jottful, including refund of fees for the services, related to (1) operating errors made by Users, whether or not related to any training deficiencies, (2) failures of the Customer’s or a User’s technology, (3) failures, outages or inaccessibility of Customer’s internal networking infrastructures, (4) failures, outages or inaccessibility of Customer’s Internet access provider or intermediate transit provider to the data center managed or contracted for by Jottful, (5) failures caused by circumstances and events beyond Jottful’s reasonable control, (6) failures caused by Customer’s use of the Services in connection with third-party applications.
10.3 Customer shall not (a) make the Services available to anyone other than Customer or its Users, (b) authorize any person or business entity to be a User unless such person or business entity is an Authorized Individual, (c) authorize any person or business entity to be a User if such person or business entity is known to Customer to be a competitor of Jottful, or (d) operate as a service bureau or intermediate provider of the Services to any third party other than Users without the advanced written consent of Jottful. An “Authorized Individual” means an employee, contractor, or permitted visitor of the Customer so long as such person is conducting business directly with Customer while they are engaged in the use of the Services.
10.4 Jottful may deploy updates, releases, fixes or modifications (“Updates”) to the Services from time to time without a scheduled outage. Jottful may deploy Updates upon Jottful’s determination, in its sole discretion, that such Updates are ready for commercial release and will improve the quality of the Services.
10.5 In the event Customer requests Jottful to access any services, including social media services, in connection with Customer’s use of the Platform, Customer hereby acknowledges and agrees that Jottful shall not be responsible for and has no liability, and shall not have any liability arising from, Jottful rendering such services.
11. Intellectual Property Rights.
11.1 Jottful retains all intellectual property rights in the Services, including copyrights, trade secrets, trademarks, patents, and “know-how.” No service or deliverable created by Jottful in connection with, or pursuant to, this Agreement shall be “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Customer owns any intellectual property rights in such Proprietary Materials, Customer hereby assigns to Jottful all rights, title, and interest, including copyrights, in such Proprietary Materials. Customer is granted a limited license to access and use the Services and is not granted any right to download the Services unless such download is to enable use by a User consistent with Jottful’s Services use policies, or create derivative works.
11.2 Customer retains the rights applicable to Customer Content and to Data generated through Customer’s and a User’s use of the Services. Customer grants Jottful permission to use the Customer Content and Data for any lawful business purposes, provided that the Data is used either in the aggregate or in a manner that does not otherwise publicly identify Customer or its customers, or any nonpublic information. Further, Customer grants Jottful permission to use or incorporate into the Services any suggestions, customizations, enhancement requests, recommendations or other feedback provided by Customer or Users relating to the use or operation of the Platform or Services. The foregoing licenses are irrevocable, royalty-free, worldwide, and transferable.
11.3 Jottful may, during the term of this Agreement, reproduce and use the trademarks, trade names, and logos (collectively, “Marks”) and Data solely in connection with Jottful’s operation and distribution of the Services. Any use of the Customer’s Marks in Jottful’s marketing materials is subject to Customer’s prior written approval. Jottful may also access aggregate data for comparative and normative processes.
12. Limited Warranties; Exclusion of Certain Warranties.
12.1 Limited Warranty. Jottful warrants that the Platform will materially perform in accordance with the System Requirements. Jottful does not warrant that the functions contained in the Platform will meet Customer’s specific needs, professional requirements (unless expressly stated in the documentation), be error-free, or operate without interruption. The Platform is hosted on a computer system that will be subject to maintenance, repair, and upgrading; the Platform will be temporarily inaccessible during such times.
12.2 Waiver of Other Warranties. THESE LIMITED WARRANTIES ARE IN LIEU OF, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT JOTTFUL HAS NO LIABILITY, AND SHALL NOT HAVE ANY LIABILITY ARISING FROM ANY CUSTOMER CONTENT USED ON OR IN CONNECTION WITH THE PLATFORM OR SERVICES.
13. Sole and Exclusive Remedies.
13.1 Correction of Platform Defects. Jottful will use reasonable efforts to correct any material nonconformance. All defect-related communications shall be sent to Jottful’s point of contact.
13.2 Acceptance/Rejection. If the Platform fails to materially conform to the System Requirements and Jottful is unable to remedy errors within a reasonable period of time, Customer may either (a) accept the Platform AS IS, or (b) reject the Services by notifying Jottful in writing that Customer is terminating this Agreement and canceling their Plan using the process detailed in Section 3.3 above.
13.3 Sole and Exclusive Remedies. The remedies in this Section are the sole and exclusive remedies provided to Customer relating to the Services.
14. Limitations of Liability for Damages. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL JOTTFUL BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING USE OF THE PLATFORM OR SERVICES, FOR: (a) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF JOTTFUL IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (b) LOST PROFITS, LOST REVENUE, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR LOSS OF DATA; AND/OR (c) DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF TEN PERCENT (10%) OF THE SUBSCRIPTION FEE AND/OR USE FEES PAID BY CUSTOMER TO JOTTFUL FOR USE OF THE PLATFORM OR FOR A PLAN IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF DAMAGE.
15. Termination of License and Agreement.
15.1 For Breach. Either party may terminate this Agreement in the event of the breach of a material obligation that is not cured within thirty (30) days after receipt of written notice specifying the nature of the breach in reasonable detail.
15.2 Obligations upon Termination. Upon expiration, termination, or non-renewal of this Agreement, Customer shall pay all amounts then due to Jottful and immediately cease all use of the Services.
15.3 Survival. All Sections of this Agreement related to ownership, privacy, indemnification, confidentiality, limitations of liability, and any other subject that would, by its nature, be deemed to survive termination of this Agreement, will survive the termination or expiration of this Agreement.
16. Miscellaneous. In order to ensure consistency in interpretation, this Agreement shall be governed by the laws of the State of Michigan and the federal laws of the United States of America. The parties waive the right to trial by jury. Customer agrees not to access the Services or export any Platform-related information outside of North America. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed modified so as to make it valid in a manner consistent with the intent of the parties expressed in that section. Customer may not assign any rights or delegate duties under this Agreement without the prior, express, written consent of Jottful, which may be granted or withheld at Jottful’s sole discretion. Any attempted assignment without such consent shall be void. This Agreement includes the documents referenced in Section 1 and constitutes the entire understanding of the parties with respect to the Services. It replaces, supersedes and merges all prior written and oral communications, representations, promises or understandings. This Agreement may be amended or supplemented only by a writing signed on behalf of both parties. Any waiver of a provision of this Agreement or of a party’s right or remedy under this Agreement must be in writing and signed by the party to be effective. Failure or delay by a party to enforce its rights or remedies under this Agreement at any time will not be deemed a waiver and will not affect the validity of this Agreement or prejudice such party’s right to take subsequent actions. It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; or any other cause not within the control of such party whose performance is delayed. All notices shall be in writing and shall be addressed to the parties at their respective addresses or to such other address as a party may designate. Notices are effective upon receipt. Notice may be given by email, hand delivery, certified mail (return receipt requested), or overnight courier.