IMPORTANT: THIS TECHNICAL SUPPORT AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND JETAPPS. READ IT CAREFULLY. AMONG OTHER PROVISIONS, IT CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SUBMITING A SUPPORT TICKET, SUPPORT REQUEST, OR SUPPORT EMAIL, OR CLICKING THE “I AGREE” BUTTON AND USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TECHNICAL SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES.
1.1 “Agreement” means this Technical Support Agreement.
1.2 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
1.3 “Beta Version” means any version of the Software released by JetApps for testing as determined by JetApps in its sole discretion, including without limitation versions of the Software designated by JetApps as “BETA” or “EDGE”.
1.4 “Complimentary Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).
1.5 “JetApps” means the JetApps company.
1.6 “JetApps Customer Portal” means JetApps’s customer service and Incident tracking system or such successor system as JetApps may designate from time to time which is presently available at http://billing.buyJetApps.com or such other URL as JetApps may designate from time to time.
1.7 “JetApps Direct Licensee” means an individual or entity who is not a JetApps Partner or JetApps Distributor who has obtained one or more licenses for the Software directly from JetApps.
1.8 “JetApps Distributor” means a JetApps Partner who has met the requirements to become a JetApps Distributor as determined by JetApps.
1.9 “JetApps Partner” means a JetApps partner who has entered into a valid and existing Partner NOC Agreement with JetApps.
1.10 “Effective Date” has the meaning given in the Support Pricing Agreement.
1.11 “Enterprise Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).
1.12 “EULA” means the applicable End-User License Agreement for the Software, including without limitation the JetApps EULA.
1.13 “Incident” means a request by you for assistance in addressing a single technical problem relating to the Software. JetApps shall make the final determination as to what constitutes an “Incident” in its sole discretion.
1.14 “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under Applicable Law, including all applications for and registrations of any of the foregoing.
1.15 “Licensed Server” or “Licensed Servers” has the meaning given in the EULA.
1.16 “Normal Business Hours” means (a) twenty-four hours a day, seven days a week in the case of technical support related Incidents; and (b) 7:00 a.m. to 7 p.m. Eastern Standard Time during business days and excluding holidays in the case of billing related Incidents. JetApps may amend the definition of “Normal Business Hours” from time to time in its sole discretion by providing notice of such change on its website.
1.17 “Priority Support” means the Services provided by JetApps to individuals or entities who have purchased Priority Support from JetApps.
1.18 “Scheduled Service Outage” means a period of time specified by JetApps during which JetApps will not provide the Services.
1.19 “Services” means the technical support services provided by JetApps in connection with this Agreement whether such services are provided via email, telephone support, the JetApps website (including without limitation the JetApps Customer Portal, the documentation, Frequently Asked Questions or discussion forums located on the website) or by any other means.
1.20 “Software” means the JetApps software program(s) for which you are seeking the Services, and corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components.
1.21 “Standard Support” has the meaning given in Section 2.6.2 (Eligibility for Submission of Incidents).
1.22 “Submissions” has the meaning given in Section 3.5 (Submissions).
1.23 “Support Fees” has the meaning given in Section 4 (Support Fees).
1.24 “Support Pricing Agreement” means, as applicable, (a) the entered into between you and JetApps for the provision by JetApps of the Complimentary Support, Telephone Support or Priority Support, as applicable, which sets forth (among other things) the term, any applicable support fees and the number of Incidents you may submit under this Agreement; (b) the Pricing and Term Agreement entered into between you and JetApps with respect to the Software which sets forth (among other things) the term, any applicable Support Fees and the number of Incidents you may submit under this Agreement; (c) the term, termination and the technical support provisions of the JetApps Partner NOC Agreement entered into between you and JetApps; or (d) the term, termination and the technical support provisions of any agreement entered into between you and a JetApps Direct License, JetApps Partner or JetApps Distributor for the provision of technical support services related to the Software. The Support Pricing Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
1.25 “Telephone Support” means the Services provided by JetApps over the telephone to individuals or entities who have paid the Support Fees applicable to telephone support.
1.26 “Term” has the meaning given in the Support Pricing Agreement.
1.27 “Territory” means the world, except to the extent that the provision of the Services or the use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
1.28 “Third Party Users” means authorized end users of the Software on Licensed Servers.
1.29 “Trademarks” means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of JetApps including without limitation JETAPPS
1.30 “Unscheduled Service Outage” means a period of time during which JetApps is unable to provide the Services or during which it is not commercially reasonable for JetApps to provide the Services as a result of unforeseen circumstances including but not limited to force majeure events such as those set forth in Section 9.1 (Force Majeure).
1.31 “Updates” means any bug fixes, patches and other modifications of the Software provided by JetApps.
1.32 “Virtual Private Server” means a virtual server operating on single physical server upon which multiple virtual servers may operate.
1.33 “You” or “Your” means or refers to the individual or entity entering into this Agreement with JetApps, whether or not such terms are capitalized in this Agreement.
2.1 Provision of Services by JetApps. Subject to the terms and conditions of this Agreement, JetApps shall use commercially reasonable efforts to provide you with the Services during the Term provided that you have not exceeded (a) the number of Incidents set forth by the Support Pricing Agreement; or (b) a commercially reasonable number of incidents as determined by JetApps if the Support Pricing Agreement does not specify the maximum number of Incidents. Notwithstanding the foregoing, JetApps may in its sole discretion elect to provide, to not provide or to provide on a limited basis (a) the Services for Complimentary Support; and (b) the Services for Beta Versions of the Software.
2.2 Normal Business Hours. JetApps shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.
2.3 Scope of Services. JetApps will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. JetApps will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless JetApps determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.
2.4 Web, Email and Telephone Support. JetApps shall use commercially reasonable efforts to provide the Services via its website using the JetApps Customer Portal or via email communications. JetApps will provide Telephone Support on a per-Incident basis if you pay the additional Support Fee as set forth in Section 4 (Support Fees). One Incident of Telephone Support can involve multiple telephone communications until JetApps closes the Incident pursuant to Section 2.8 (Resolution of Incidents). JetApps may on a case-by-case basis and in its sole discretion elect to provide support via telephone free of charge if it deems it necessary to do so in the event of a complicated or time-consuming Incident. JetApps shall provide the Services, and all Incidents shall be submitted, in the English language only.
2.5 Location of Services. JetApps shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The Licensed Server for which a particular Incident is submitted may be located in anywhere in the Territory. JetApps shall not provide the Services “on site.”
2.6 Submission of Incidents.
2.6.1 JetApps Customer Portal. Except for Telephone Support Incidents which must be purchased via the JetApps website, all Incidents must be submitted via the JetApps Customer Portal or, in the case of JetApps Partners and JetApps Distributors, the Manage Interface (as defined in the Partner NOC Agreement).
2.6.2 Eligibility for Submission of Incidents. If you are a JetApps Partner or JetApps Distributor, Incidents you submit by shall be deemed “Enterprise Support.” If you are a JetApps Direct Licensees, Incidents you submit by shall be deemed “Standard Support.” If you are an individual or entity (other than a JetApps Partner, JetApps Distributor or JetApps Direct Licensee), including (a) a holder of an Educational License, Non-Profit License or Trial License; (b) a Third Party User; or (c) a user with root access to a Licensed Server, Incidents you submit shall be deemed “Complimentary Support.” If you obtained your license to the Software from a JetApps Partner or JetApps Distributor, you may obtain Enterprise Support if you submit your Incident through such JetApps Partner or JetApps Distributor. You may obtain Priority Support by paying the applicable Support Fees for Priority Support.
2.6.3 Support Logins and Support Access Numbers. Subject to the terms and conditions of the Partner NOC Agreement, JetApps Partners and JetApps Distributors may use the Manage Interface (as defined in the Partner NOC Agreement) to provision usernames and passwords for the JetApps Customer Portal which can be used for submitting Incidents by their respective staff. Anyone with root access to a Licensed Server may submit Incidents to the JetApps Customer Portal.
2.6.4 Submission Details. In order for JetApps to provide the Services to you, you must provide all information requested by JetApps with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, JetApps shall not be obligated to provide the Services to you and the limited warranty of Section 6.2 (Limited Warranty) shall not apply to the Incident.
2.7 Service Levels.
2.7.1 Priority of Support. JetApps will use commercially reasonable efforts prioritize its response to Incidents depending upon the level of support applicable to such Incidents in the following order: Telephone Support, Enterprise Support, Priority Support, Standard Support and Complimentary Support. Notwithstanding the foregoing sentence, JetApps may elect to prioritize its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the JetApps Customer Portal regardless of the level of support applicable to such Incidents.
2.7.2 Escalation of Incidents. JetApps maintains internal escalation procedures with respect to Incidents. In the event that a JetApps representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), JetApps will escalate the Incident in accordance with its internal escalation procedures. JetApps may change its internal escalation system from time to time within its sole discretion.
2.7.3 Support Levels. Subject to Section 2.7.1 (Priority of Support), JetApps will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. JetApps shall resolve all Incidents subject to Section 2.8 (Resolution of Incidents).
2.8 Resolution of Incidents. In the event that JetApps resolves your Incident, or makes a determination that no resolution is commercially feasible, JetApps will provide you notice through the JetApps Customer Portal and close the Incident on such system. Alternatively, JetApps may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”). If JetApps determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, JetApps will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to JetApps’s development team for further consideration and possible correction or inclusion into the Software. Any information, feedback, ideas or suggestions you provide to JetApps with respect to a Software Bug or Feature Request shall be deemed a Submission. JetApps shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. JetApps will not provide the Services for closed Incidents.
2.9 Provision of Services to Third Party Users.
2.9.1 Third Party User Incidents. If you are a JetApps Direct Licensee, JetApps Partner or JetApps Distributor, you may submit Incidents on behalf of Third Party Users and JetApps will provide the Services with respect to such Incidents; provided that (a) you must enter into an agreement with each Third Party User concerning JetApps’s provision of the Services with respect to such user’s Incidents (“Third Party Support Agreement”); (b) as part of such Third Party Support Agreement each Third Party User must agree to the Flow-Through Provisions set forth in Section 2.9.2 as a condition of JetApps’s provision of the Services with respect to the Third Party User’s Incident; and (c) the Third Party Support Agreement shall not offer or provide services greater in scope and duration than the Services provided by the Partner NOC Agreement or the Pricing and Term Agreement, as applicable.
2.9.2 Flow-Through Provisions. Any Third Party Support Agreement must contain:
- The Third Party User’s acknowledgement and agreement that JetApps owns all right, title and interest in and to the JetApps IP Rights substantially similar to Section 3.1 (Ownership);
- A notice substantially similar to the disclaimer set forth in Section 6.3 (Disclaimer) that JetApps disclaims all warranties and representations with respect to the Services;
- A limitation of liability substantially similar to that set forth in Section 7 (Limitation of Liability) for the benefit of JetApps;
- The Third Party User’s acknowledgement and agreement that JetApps’s obligation to provide the Services shall automatically expire without notice upon the expiration or termination of this Agreement or the JetApps EULA for any reason whatsoever;
- The Third Party User’s acknowledgement and agreement that JetApps may in its sole discretion terminate or suspend provision of the Services to you or any Third Party User in the event of (i) any breach of this Agreement or the JetApps EULA by you or (ii) any breach by the Third Party User or any provision concerning JetApps or the Services in any Third Party Support Agreem
- The Third Party User’s acknowledgement and agreement that JetApps is a third party beneficiary of the Third Party Support Agreement between you and the Third Party User with the full right to enforce the provisions of the Third Party Support Agreement as they pertain to JetApps and the Services;
- The Third Party User’s acknowledgement and agreement that concerning your disclosure to JetApps and JetApps’s collection of the Support Data, including without limitation any Support Data that may personally identify the Third Party User; and
- The Third Party User’s waiver of any and all claims (whether under law, equity or any other theory of liability) against JetApps and its affiliates that may arise from a Third Party User’s inability to use the Services in the event (i) of the expiration or termination of this Agreement or the EULA for any reason whatsoever; or (ii) that JetApps suspends provision of the Services as set forth in this Section 2.9.
Your right to submit Incidents on behalf of Third Party Users and receive the Services with respect to such Incidents is conditioned upon your compliance with the terms of this Section 2.9. Upon request from JetApps, you shall provide JetApps with copies of any Third Party Support Agreements. JetApps shall also have the right (but not the obligation) to notify any Third Party Users that JetApps will or has terminated or suspended the provision of the Services due to the termination or expiration of this Agreement or a breach of this Agreement. In the event that JetApps notifies Third Party Users pursuant to the preceding sentence, JetApps reserves the right to offer products and services, including without limitation the Software and Services, to any Third Party Users affected by such termination or expiration (or to refer such third parties to other JetApps licensees or affiliates). Except as set forth in this Section 2.9, you may not submit Incidents to JetApps on behalf of any third party.
2.10 Support Data. In order to provide the Services to you, JetApps may collect information from you including but not limited to: (a) IP addresses, usernames and passwords necessary to login to SSH, WebHost Manager and the Licensed Server’s root directory; (b) the usernames and passwords necessary to login into any affected accounts including email accounts, JetApps accounts, MySQL accounts and other accounts; and (c) other information that you voluntarily supply or that JetApps requests in order to resolve your Incident ((a) through (c) collectively, “Support Data”). JetApps will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent JetApps is required or permitted to disclose, access or use such information by Applicable Law), but JetApps cannot guarantee the security of such data. To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties (including Third Party Users) or to give any notices or disclaimers to third parties (including Third Party Users) prior your disclosure of Support Data to JetApps, you agree to comply with such Applicable Laws prior your disclosure of Support Data to JetApps.
2.11 License Exchange. You agree that this the terms and conditions of this Agreement and the Support Pricing Agreement shall supersede any prior agreement and between you and JetApps applicable to any support services provided by JetApps to you with respect to the Software.
3. Intellectual Property Rights.
3.1 Ownership. JetApps owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) the Services; and (d) any and all Submissions (collectively, “JetApps IP Rights”).
3.2 Trademarks; Domain Names. This Agreement does not authorize you to use the Trademarks. If you wish to use the Trademarks, you must obtain a written license to use the Trademarks from JetApps. Without limiting the foregoing, you are required to comply with the JetApps Trademark Usage Policy which is located at http://www.JetApps.net/trademarkup.htm (or such other URL as may be designated by JetApps from time to time) and which may be updated by JetApps in its sole discretion from time to time. Additionally, you will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest JetApps’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
3.3 No Implied License or Ownership. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant you any right, title or interest, implied or otherwise, in or to the JetApps IP Rights.
3.4 No Contest. You acknowledge and agree that the JetApps IP Rights are and shall remain the sole and exclusive property of JetApps. You agree that you shall never oppose, seek to cancel, or otherwise contest JetApps’s ownership of the JetApps IP Rights or act in any manner that would or might conflict with or compromise JetApps’s ownership of the JetApps IP Rights, or similarly affect the value of the JetApps IP Rights. Whenever requested by JetApps, you shall execute such documents as JetApps may deem necessary or appropriate to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights. In the event JetApps is unable, after reasonable effort, to secure your signature on any document or documents needed to apply for or to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights for any other reason whatsoever, you hereby irrevocably designate and appoint JetApps as your duly authorized attorney-in-fact, to act for and on your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect JetApps’s ownership of the JetApps IP Rights with the same legal force and effect as if executed by you. In the event you become aware that any third party is, or may be, infringing the JetApps IP Rights, you agree to notify JetApps of such fact.
3.5 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to JetApps concerning the Software, Services, or any of JetApps’s products or services, you agree that: (a) your Submissions will automatically become the property of JetApps, without any compensation to you; (b) JetApps may use or redistribute the Submissions for any purpose and in any way; (c) JetApps is not obligated to review any Submissions; and (d) JetApps is not obligated to keep any Submissions confidential.
4. Support Fees.
As a condition of the provision of the Services by JetApps under this Agreement, you shall pay JetApps the amounts set forth in your Support Pricing Agreement (“Support Fees”) in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.
5.Term and Termination.
5.1 Term. This Agreement shall commence on the Effective Date and shall automatically expire at the end of the Term.
5.2 Termination. JetApps may terminate this Agreement (a) in the event of your breach of this Agreement (or a Third Party User’s breach of a provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or JetApps) upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.9 (Provision of Services to Third Party Users); or (c) immediately without notice in the event of your material breach of this Agreement (or a Third Party User’s breach of a material provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or JetApps). You acknowledge and agree that any breach by you or any Third Party User of the following provisions of the Agreement or any related provisions of a Third Party Support Agreement or Third Party Support Agreement shall each constitute a material breach: (i) any conduct inconsistent with the JetApps IP Rights as set forth in Section 3 (Intellectual Property Rights); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of this Agreement or your rights and obligations with respect to this Agreement in violation of Section 9.8 (Assignment); (iii) any breach of Section 4 (Payment); and (iv) any breach of your representations and warranties under Section 6.1 (Mutual Representations). Additionally, a material breach by you of any agreement or contract between you and JetApps, including without limitation a breach of JetApps’s Trademark Usage Policy, any applicable EULA or the Partner NOC Agreement shall be deemed a material breach of this Agreement and shall give rise to JetApps’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.
5.3 Survival. Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive termination or expiration of this Agreement for any reason.
6. Representations; Warranties; Disclaimer.
6.1 Mutual Representations. Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the Services and the performance of its obligations under this Agreement.
6.2 Limited Warranty. JetApps will use commercially reasonable efforts to resolve any Incident for which you have purchased Telephone Support. If JetApps determines, pursuant to Section 2.8 (Resolution of Incidents), that it is us unable to resolve the Incident in a commercially feasible manner, JetApps will refund any Support Fees associated solely with the telephone support.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SERVICES ARE PROVIDED “AS IS” AND JETAPPS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. JETAPPS DOES NOT WARRANT THAT THE SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT INTERRUPTION. IF THE SERVICES ARE DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF JETAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES.
6.3.1 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JETAPPS, ITS AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.
6.3.2 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7.Limitation of Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETAPPS WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF JETAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS OWED BY YOU TO JETAPPS UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JETAPPS’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY JETAPPS FOR AN INDIVIDUAL PIECE OF SOFTWARE THAT IS THE SUBJECT OF AN INCIDENT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND JETAPPS’S ENTIRE LIABILITY SHALL BE FOR JETAPPS TO REFUND THE SUPPORT FEES AS SET FORTH IN THAT SECTION. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES.
You shall indemnify, defend and hold harmless JetApps and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and JetApps affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “JetApps Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the JetApps Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of your representations, warranties or obligations under this Agreement; (b) in the event that you submit Incidents on behalf of Third Party Users pursuant to Section 2.9 (Provision of Services to Third Party Users), (i) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party Support Agreement relating to JetApps, the Software or the Services; and (ii) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination or suspension of the Services to such user by JetApps pursuant to the terms and conditions of this Agreement; provided, however, that in any such case JetApps or its affiliates, as applicable, (x) provide you with prompt notice of any such claim; (y) permit you to assume and control the defense of such action upon your written notice to JetApps of your intention to indemnify; and (z) upon your written request, and at no expense to JetApps or its affiliates, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the JetApps Parties, without JetApps’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by JetApps or it affiliates in connection with or arising from any such claim.
9.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that JetApps and you are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between JetApps and you.
9.3 Choice of Law; Venue; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts located in Orange County, California. For purposes of this Agreement, you and JetApps hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Orange County, California.
9.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between JetApps and you and shall inure to the benefit of JetApps. JetApps would not be able to provide the Software on an economic basis without such limitations.
9.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not effect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
9.7 Amendment or Modification. This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed by JetApps and you.
9.8 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: by JetApps in its sole discretion. In addition, JetApps may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that JetApps will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.
9.9 Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
9.10 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
9.11 No Third Party Beneficiaries. This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties including, without limitation, any Third Party Users.
9.12 Notices. All notices or questions relating to this Agreement shall be directed to:
940 Calle Negocio, Suite #150, San Clemente, CA. 92673
Attention: Legal Dept. Any notice required to be given under this Agreement shall be deemed given by JetApps when sent to you by email, telephone, fax or mail to the contact information supplied by you to JetApps in the Support Pricing Agreement or the Partner NOC Agreement. You may update such information from time to time upon written notice to JetApps at the address in this Section 9.12. Any failure by you to provide JetApps with updated contact information will not invalidate the effectiveness of any notice sent by JetApps to the contact information previously supplied by you.
9.13 Export Controls. The parties agree to comply fully with all Applicable Laws of the United States, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the Software in connection with this Agreement.
9.14 Time-Limited Claims. Regardless of any Applicable Law to the contrary, you agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.