Updated: September 7, 2023
Master Terms for Managed Hospitality Services
These Master Terms govern all Order Forms entered into between Jazzware, Inc., a Delaware corporation having a principal place of business at 11447 Cypress Terrace Pl., San Diego, CA 92131-3518, United States (“Jazzware”) and the entity or individual that is a party to the Agreement with Jazzware (“Customer”).
1. DEFINITIONS
1.1. “Affiliate” means, as to any party, an entity that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such party.
1.2. “Agreement” means, collectively: (a) these Master Terms, (b) any Order Form, (c) any exhibits, schedules, or appendices attached thereto or incorporated by reference, and (d) any amendments and addenda to any of the foregoing.
1.3. “Content” means the data transmitted using the Services.
1.4. “Customer Property” means those properties that are owned, leased or directly managed by Customer and that are listed on the applicable Order Form.
1.5. “Customer Data” means Customer and End Customer data that is not Content transmitted by the Services, but which is separately provided to Jazzware by Customer.
1.6. “Documentation” means all user and admin guides made available by Jazzware that describe the technical, functional, operational or performance capabilities of the Services.
1.7. “End Customer” has the meaning given in Section 2.4.
1.8. “Hardware” means the hardware that is provided to Customer by Jazzware for use in connection with the provision of certain Services, including any Software installed thereon.
1.9. “Order Form” means an order form, schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer and that sets forth one or more Service(s) being provided by Jazzware to Customer and specific terms applicable to each such Services.
1.10. “Service(s)” means each Jazzware product (including Hardware and Software), platform, or service provided or made accessible to Customer in accordance with an Order Form.
1.11. “Software” means the JAZZ Enterprise Communications Accounting Software and Jazzware hosted JAZZ Fusion Communications Accounting Software and supporting documentation, software installed on the Hardware, or any other software made available to Customer by Jazzware.
2. JAZZWARE SERVICES
2.1. Services. Jazzware will provide access to the Services for the benefit of Customer Properties pursuant to the Agreement. Some or all of Jazzware obligations under this Agreement may be performed by Jazzware Affiliates and Jazzware will remain responsible for compliance with the terms of this Agreement by such Jazzware Affiliates.
2.2. Changes to the Services. Jazzware may modify the Services by adding new features, functionality, capabilities and/or services from time to time. If in Jazzware’s commercially reasonable judgment any such modification is reasonably expected to materially and adversely affect the Services, Jazzware will use reasonable efforts to provide at least thirty (30) days’ advance written notice to Customer of such material modification.
2.3. Customer Responsibilities. Customer acknowledges that Jazzware’s performance may be dependent on Customer’s performance of its responsibilities and on timely decisions and approvals by Customer. Jazzware’s failure to perform will be excused to the extent its non-performance is caused by Customer. Jazzware will be entitled to rely upon the accuracy and completeness of information provided by, and upon the decisions and approvals of, Customer.
2.4. Managed Customer Properties. If Customer manages Customer Properties on behalf of a third party (each an “End Customer”), this Section 2.4 applies. Customer will have an agreement in place with each of its End Customers governing their use of and access to the Services. Customer will ensure that the terms and conditions of these agreements are consistent with the terms of this Agreement and permit Jazzware to receive its rights and perform its obligations under this Agreement. Customer is responsible for the acts and omissions of End Customer under this Agreement. Customer will at all times conduct its activities in a professional and competent manner. Without limitation, Customer will: (a) comply with all applicable laws, regulations and orders of any governmental authority in its performance of this Agreement and management of Customer Properties on behalf of End Customers, (b) promote the Services in a manner that maintains the good name and reputation of both Jazzware and the Services, (c) not engage in any illegal, false or deceptive acts or practices with respect to its business activities, and (d) not make any representations or warranties concerning the Services on behalf of Jazzware.
2.5. On-Boarding. Jazzware will activate the functionalities of the ordered Services after Customer provides the required on-boarding information. On-boarding will be deemed completed when Jazzware notifies Customer that the ordered functionalities have been activated. Customer’s cooperation is required for Jazzware to efficiently and effectively onboard the Services. Jazzware will have no liability for any delays, deficiencies or failures that occur in the performance of onboarding of the Services or the Services attributable to unanticipated Customer requests, complications with Customer systems and equipment or third party providers, Customer’s failure to cooperate and to comply with its obligations under this Agreement or otherwise due to Customer breach of the Agreement.
2.6. Reporting. If Jazzware provides reporting as part of the Services, Jazzware will provide its reports within fifteen (15) days after the close of the period to which the reports relate.
2.7. Sales through Reseller. If Customer makes any purchases through an authorized partner or reseller of Jazzware (“Reseller”): (a) Instead of paying Jazzware, Customer will pay the applicable amounts to Reseller, as agreed between Customer and Reseller; (b) Jazzware may suspend or terminate Customer’s rights to use Services if Jazzware does not receive the corresponding payment from the Reseller; (c) Customer’s Order Form details (e.g., the Services that Customer is entitled to use, the number of end users, the term of the Services, etc.) will be as stated in the Order Form placed with Jazzware by Reseller on Customer’s behalf, and Reseller is responsible for the accuracy of any such Order Form as communicated to Jazzware; (c) If Customer is entitled to a refund under this Agreement, then unless Jazzware otherwise specifies, Jazzware will refund any applicable fees to Reseller and Reseller will be solely responsible for refunding the appropriate amounts to Customer; (d) Resellers are not authorized to modify this Agreement or make any promises or commitments on Jazzware’s behalf; (e) Jazzware is not bound by any obligations to Customer other than as set forth in this Agreement; and (f) The amount paid or payable by Reseller to Jazzware for Customer’s use of the applicable Services under this Agreement will be deemed the amount actually paid or payable by Customer to Jazzware under this Agreement for purposes of calculating the liability cap under this Agreement. As between Customer and Jazzware, Customer is solely responsible for any access by Reseller to Customer’s accounts.
3. CUSTOMER’S ADDITIONAL OBLIGATIONS
3.1. Information. Customer will provide Jazzware with all information and cooperation that Jazzware reasonably requests as necessary, appropriate or desirable in performing the Services.
3.2. Content. Customer is responsible for its own network and network security policy and procedures and when the Content is in the possession of Customer, Customer is responsible for maintaining the security and confidentiality of the Content. To the extent that the Content is in the possession of Jazzware, Jazzware is responsible for maintaining the security and confidentiality of such Content. Customer is responsible for obtaining, and for bearing all costs, obligations and liabilities associated with, any licenses, releases or waivers related to the Content required by any third party or any act or regulation of any government, and any necessary rebroadcast or retransmission rights or permissions, including Jazzware’s use and possession of such Content for performance of the Services. Except to the extent that the Content is in its possession, Jazzware exercises no control over, and accepts no responsibility for, the Content, and use of any such Content is at Customer’s and its Customer’s own risk. Customer will indemnify, defend and hold Jazzware harmless from any claims related to Customer’s failure to comply with this provision.
3.3. Jazzware Acceptable Use Policy. Neither Customer, nor those that use Services through Customer such as an End Customer, may use Services (a) in a way prohibited by law, regulation, governmental order or decree, (b) to violate the rights of others, (c) to try to gain unauthorized access to or disrupt any service, device, data, account or network, (d) to spam or distribute malware, (e) in a way that could harm the Services or impair anyone else’s use of it, (f) in a manner inconsistent with the Documentation, or (g) in any application or situation where failure of the Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, the “AUP”).
3.4. Account, Password, and Security. If applicable, Customer must establish an account for accessing the Services (“Account”), including a username and password to access such account (“Credentials”). Customer is responsible for activities that occur under its Credentials and Account. Customer agrees to notify Jazzware promptly of any unauthorized use of its Credentials or Account or any other suspected breach of security relating to the Services or if it becomes aware of a breach of the AUP.
3.5. Customer Property Locations. Customer will pay all expenses, including taxes, currency risks, shipping, duties, regulatory, business, wiring, and customization fees required in any government jurisdiction in which a Customer Property is located as necessary for the provision of the Services to such Customer Property, and Customer will indemnify and hold harmless Jazzware from any fees assessed against Jazzware in connection therewith.
4. PROPRIETARY RIGHTS.
4.1. Ownership of Services. The Services, and all components thereof including any know-how, methodologies, processes, data, and information, are and will remain the property of Jazzware.
4.2. Limited Rights. For each Property Services Term, Jazzware grants to Customer a limited right to access the Services solely for Customer’s own internal business use in receiving the Services for a Customer Property in accordance with the terms and conditions of this Agreement.
4.3. Restrictions. Customer may access and use the Services solely as permitted and required under the Agreement. Customer will not, except to the extent permitted by applicable law: (a) resell, license, lease, time-share, or otherwise transfer or distribute any of part of the Services, (b) reverse engineer, decompile, or disassemble any part of the Services, (c) modify, copy, or create derivative works of the Services, (d) use the Services to build a competitive product or service, (e) remove or destroy any proprietary marking, legends, notices, or license documents placed upon or contained with or within any portion of the Services, or (f) authorize or permit any third-party to do any of the acts described in (a) through (e). Jazzware reserves all rights not expressly granted hereunder.
4.4. Content and Customer Data. As between the parties, Customer will be and remain the owner of all Content and Customer Data. Customer Data is used by Jazzware to communicate with Customer and administer the Services provided under this Agreement, and Jazzware may use it for those purposes and as otherwise provided in this Agreement or Order Form. Customer is solely responsible for all data and information that is provided to Jazzware for conversion or entry in or with the Services, including completeness, accuracy, validity, authorization for use and integrity. Prior to providing Customer Data or Content to Jazzware or via the Services, Customer will obtain all necessary consents and permissions for Customer Data and Content to be provided to (and used) by Jazzware as contemplated herein, including from End Customers if applicable. Jazzware also collects and uses certain Content and Customer Data as described in Jazzware’s Privacy Policy, located at https://www.jazzware.com/privacy-policy (or successor URL), which Customer acknowledges. In addition, Jazzware may use or disclose Content, Customer Data and related information, to: (a) satisfy legal requirements, comply with the law or respond to subpoenas, warrants, court orders or other lawful requests or legal process, or (b) act on a good faith belief that such use or disclosure is necessary to protect the personal safety of Jazzware employees, customers or the public. Jazzware may use and disclose Content for purposes of analytics, provided that in connection with such analytics (a) the data is aggregated with similar data of other companies, and (b) the data is used in a manner that does not disclose to any third party the identity of Customer.
4.5. Data Privacy. To the extent that Customer Personal Information is subject to means the California Consumer Privacy Act (as amended by the California Privacy Rights Act, “CCPA”), Jazzware will process Customer Personal Information in accordance with the terms of this paragraph. “Customer Personal Information” means Personal Information that is contained in the Customer Data or Content and is Processed pursuant to this Agreement. Jazzware acknowledges that it is a Service Provider in accordance with the CCPA and agrees that: (a) Customer Personal Information has been disclosed to it by Customer only for limited and specified purposes, (b) it will comply with applicable obligations under the CCPA and provide the same level of privacy protection as is required by the CCPA, (c) Customer may take reasonable and appropriate steps to help ensure that Jazzware uses the Customer Personal Information transferred in a manner consistent with Customer’s obligations under the CCPA, (d) Jazzware will notify Customer if it makes a determination that it can no longer meet its obligations under the CCPA, (e) Customer may, upon notice, take reasonable and appropriate steps to stop and remediate unauthorized use of Customer Personal Information, (f) Jazzware will not Sell or Share Customer Personal Information, (g) Jazzware will not retain, use, or disclose Customer Personal Information for any purpose other than for the specific purpose of performing the Services, including retaining, using, or disclosing Customer Personal Information for a commercial purpose other than in relation to providing the Services, (h) Jazzware will not retain, use, or disclose Customer Personal Information outside of the direct business relationship between Jazzware and Customer, (i) Jazzware will not combine Customer Personal Information that it receives from, or on behalf of, Customer with Customer Personal Information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with data subjects, provided that Jazzware may combine Customer Personal Information to perform any business purpose as defined in regulations adopted pursuant to paragraph (10) of subdivision (a) of Cal. Civ. Code § 1798.185, except as provided for in paragraph (6) of subdivision (e) of Cal. Civ. Code § 1798.140 and in regulations adopted by the California Privacy Protection Agency, and (j) if Jazzware engages any other person to assist it in processing Customer Personal Information for a business purpose on behalf of Customer, or if any other person engaged by Jazzware engages another person to assist in processing Customer Personal Information for that business purpose, Jazzware will notify Customer of that engagement, and the engagement will be pursuant to a written contract binding the other person to observe all the requirements set forth in Cal. Civ. Code § 1798.140(ag)(1). All terms capitalized in this paragraph and not defined within the Agreement will have the same meaning as set forth in the CCPA.
5. HARDWARE AND SOFTWARE
5.1. Customer Responsibility. Except for Hardware and Software, Customer has sole responsibility for ordering, securing, installing and ensuring proper operation of equipment or software required to enable Customer to provide or a Customer to receive the Services.
5.2. Hardware. Jazzware may provide Hardware to Customer for use on Customer Properties. Jazzware reserves the right to charge for shipping Hardware to Customer Properties. All Hardware will be and remain personal property of Jazzware. Customer will keep the Hardware free of liens and encumbrances. Customer will treat and maintain the Hardware with the same degree of care as Customer uses with respect to its own valuable property, but with no less than reasonable care. Upon Jazzware’s request, Customer will deliver all Hardware to Jazzware in good condition, normal wear and tear excepted and, except for freight costs, without cost to Jazzware. Customer bears the risk of loss of the Hardware while it is in the possession of Customer or an End Customer. However, if the Hardware ceases to function during the Property Services Term, Customer will contact Jazzware’s support organization for return procedures, and Jazzware will replace the defective Hardware as soon as practicable. Jazzware reserves the right to charge Customer to replace Hardware that, while in the possession of Customer or an End Customer, has been modified by any party other than Jazzware, or has been subject to any damage, accident, neglect, or mistreatment.
5.3. Software License. If applicable, Jazzware will provide Software to Customer and Customer may use the Software as part of the Services. Subject to the terms and conditions of the Agreement, including, without limitation, Section 4.3 and the payment of all applicable fees, Jazzware hereby grants to Customer a limited, non-exclusive, revocable, non-sublicensable, and non-transferable license to use any Software in object code format only in connection with the Services, and with respect to Software installed on the Hardware, exclusively in conjunction with the specific Hardware on which such Software is installed. All Software remains the sole and exclusive property of Jazzware or its third party licensors. Except for the express license granted herein, no other licenses are granted by Customer by implication or otherwise. The Software may contain third party software products, which may be accompanied by certain notices or license documentation and subject to disclaimers of all warranties, express or implied. Notwithstanding any other provision of the Agreement, such products are made available as-is, without warranty or indemnity of any kind. Customer will comply with the terms of all such licenses governing use of any such products.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
6.1. Compliance with Laws. In performance of its obligations under this Agreement, each party will comply with all country, federal, state, and local laws, regulations, rules or codes. Neither party will make any payments or transfers of value which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business in violation of law, including the U.S. Foreign Corrupt Practices Act, the U.S. Federal Anti-Kickback Statute or other law that prohibits the giving, accepting, soliciting (i.e., asking for) or arranging items of value in any form (e.g., gifts, certain discounts or cross-referrals between parties), either directly or indirectly for the purpose of inducing or rewarding another party for referrals of services paid for by a government program, or in violation of any other statutes, regulation or law that would render any arrangement under this Agreement illegal.
6.2. Jazzware’s Representations and Warranties. Jazzware warrants to Customer that the Services will perform substantially in accordance with the Documentation for such Services. This limited warranty will be void if: (a) the Services have been modified or altered by anyone other than Jazzware or Jazzware’s subcontractors or Affiliates, without Jazzware’s express, prior written approval, or (b) the Services are used in violation of this Agreement. Jazzware’s sole obligation and Customer’s sole and exclusive remedy if any of the Services fail to meet the foregoing warranty will be to use reasonable commercial efforts to correct such failure, provided that Customer first promptly reports such failure.
6.3. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, (a) ALL SERVICES HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, (b) USE OF THE SERVICES IS AT CUSTOMER’S AND END CUSTOMERS’ OWN RISK AND (c) JAZZWARE DOES NOT (i) MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, (ii) WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, AND (iii) GUARANTEE THAT ITS PROCEDURES AND SERVICES WILL PREVENT LOSS, ALTERATIONS OR UNAUTHORIZED ACCESS TO CUSTOMER DATA OR CONTENT HOSTED, DISTRIBUTED OR DELIVERED THROUGH ANY FACILITY EMPLOYED IN THE DELIVERY OF THE SERVICES OR IN THE PERFORMANCE OF THIS AGREEMENT. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. JAZZWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7. LIMITATION OF LIABILITY AND EXCLUSIONS.
7.1. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED THE AGGREGATE AMOUNT PAID TO JAZZWARE IN THE TWELVE (12) MONTHS PRECEDING THE MOST RECENT EVENT GIVING RISE TO THE CLAIM(S).
7.2. EXCLUSIONS. THE LIMITATIONS AND EXCLUSIONS ON LIABILITY SET FORTH IN SECTION 7.1 WILL NOT APPLY TO: (A) INDEMNIFICATION OBLIGATIONS, OR (B) AMOUNTS PAYABLE TO JAZZWARE.
8. PRICE, INVOICING AND PAYMENT
8.1. Prices and Payment. During the term of this Agreement, Customer must pay all applicable charges for the Services in accordance with prices set forth in the applicable Order Form, or if not in the Order Form then in Jazzware’s then-current price list. Customer Property implementation fees are a one-time advance setup fee, invoiced in full upon implementation of the Services at each Customer Property. Such fees assume remote installation; however, Customer may purchase on-site installation services. Subscription fees may recur monthly, quarterly, annually, or as otherwise agreed between the parties (monthly if not specified) for Services for each Customer Property. Subscription fees begin on the commencement of the Services and will continue for each month thereafter until expiration of the applicable Property Services Term, except as otherwise expressly provided in this Agreement. Subscription fees are invoiced monthly in advance. If applicable, the charges for the first month will be pro-rated based on the date of activation of the applicable Services. Jazzware may provide consolidated invoices showing all Customer Properties billable to Customer in a billing cycle.
8.2. Additional Services. Unless otherwise agreed by the parties in writing, Jazzware will have no obligation to provide any additional work beyond the scope expressly described in the Order Form. Additional work will be charged on a time and material basis using Jazzware’s then-current professional services rates, unless otherwise agreed between the parties.
8.3. Payment Terms. Customer will pay all invoices submitted by Jazzware within thirty (30) days of the date of the invoice. Non-receipt of payment from an End Customer will not excuse or delay payment to Jazzware. If Customer fails to make any payment when due, in addition to its remedies under this Agreement or pursuant to applicable law, Jazzware may, at its discretion, require that subsequent orders be paid in full prior to performance. Jazzware reserves the right to impose a late payment charge of one and one half percent (1½%) per month, or the maximum allowed by law, whichever is less, on any invoice, that is not timely paid, until such invoice is paid in full.
8.4. Taxes. All prices exclude taxes. Except for taxes based on Jazzware’s net income, Customer will pay any applicable sales, use, excise, value added or other taxes, or amounts levied in lieu of such taxes, now or later imposed under the authority of any national, state or local taxing authority, based on sales of the Services to or by Customer. If Customer is required to withhold an amount for taxes from a payment that Customer is required to make to Jazzware under this Agreement, Customer will notify Jazzware in writing in advance prior to such withholding. Customer agrees to provide such assistance as Jazzware reasonably requests for any filing that Jazzware determines to make either to avoid the withholding or to recoup any money that is withheld.
9. TERM AND TERMINATION
9.1. Term of Agreement. The Agreement will continue in effect until terminated as permitted hereunder. Each Order Form has the term specified therein. Termination of any individual Order Form will not affect any other Order Form in effect between the parties at the time of such termination. Either party may terminate these Master Terms for any or no reason upon thirty (30) days’ written notice to the other party if no Order Forms are in effect between the parties at such time.
9.2. Property Services Term. Unless otherwise specified in the Order Form, each Customer Property will subscribe to the Services for a period commencing thirty-six (36) months after the Commencement Date (“Property Services Term”). The “Commencement Date” is the earlier of the Customer Property go-live date or thirty (30) days after the Services have been configured by Jazzware for use by the applicable Customer Property. Unless the parties enter into a new multi-year Order Form with a new Property Services Term, the Property Services Term at each Customer Property will automatically renew in one (1) year increments on the same terms included herein and in the applicable Order From, unless either party sends ninety (90) days’ written notice to the other party of its intent not to extend the Property Services Term prior to expiration of the then current Property Services Term. During any automatic renewal periods where the parties have not entered into a multi-year Order Form with a new Property Services Term, Jazzware’s obligations with respect to Hardware (including warranty obligations and remedies for Services issues to the extent caused by Hardware) will cease, and during such period the Hardware will be made available on an as-is basis only. If any Property Services Term extends beyond the termination or expiration of these Master Terms or an Order Form, the applicable Services will remain in effect, subject to all of the terms and conditions of this Agreement and applicable Order Forms until expiration of the applicable Property Services Term.
9.3. Suspension. Jazzware may suspend Customer’s or any End Customer’s right to access or use any portion of or all of the Services immediately upon notice to Customer if Jazzware reasonably determines: (a) Customer’s or an End Customer’s use of the Services (i) poses a security risk to the Services or any third party, (ii) risks adversely impacting Jazzware’s systems, the Services or the systems, data or content of any other Jazzware customer, or (iii) risks subjecting Jazzware or its Affiliates to what Jazzware would deem a material liability, (b) Customer or any End Customer is not in compliance with the AUP, (c) Customer is more than ten (10) days delinquent on any payment (whether or not disputed), and (d) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
9.4. Termination. Either party may terminate the Agreement and/or an Order Form immediately upon written notice at any time if the other party is in material breach of any provision of this Agreement or applicable Order Form and has failed to cure that breach within thirty (30) days after written notice from the nonbreaching party.
9.5. General Effect of Termination. Upon expiration or termination of the final Order Form, each party will (a) delete any of the other party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries and (b) return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information. Notwithstanding the foregoing, the receiving party may retain copies of the disclosing party’s Confidential Information (x) as part of archival records (including backup systems) that receiving party keeps in the ordinary course of its business, but only as required by receiving party’s records retention policies, (y) as may be required by law, or (z) if it is relevant to a dispute between the parties.
9.6. Survival. Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, records maintenance and audit, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.
10. INDEMNIFICATION.
10.1. Indemnification. Each party will defend and indemnify the other party and its directors, officers and employees from and against any third party damage, loss, deficiency, cost, liability and expenses and amounts paid pursuant to court order or in settlement resulting from or arising out of any claim, suit action or proceeding (each a “Claim”) made or brought by a third party against any of the indemnified parties in connection with: (a) in the case of Customer as the indemnifying party, a Claim (i) arising from or relating to a violation of the AUP, or (ii) that the Content or Customer Data infringes on the intellectual property or other rights of any third party or violates applicable law, and (b) in the case of Jazzware as the indemnifying party, a Claim that any authorized use of the Services infringes on the patent, copyright, or trade secret rights of any third party.
10.2. Infringement Exclusions. A party’s defense and indemnity obligations will not apply to infringement Claims, however, to the extent the infringement Claim relates to or arises from: (a) unauthorized modification of the allegedly infringing article, (b) failure to use modifications applicable to the allegedly infringing article made available by the indemnifying party, (c) use of the allegedly infringing article in combination with any product, technology, or information not provided by the indemnifying party, or (d) the indemnified party’s breach of the Agreement.
10.3. Indemnification Limitations. The indemnification obligations will be subject to the indemnified party providing the indemnifying party with prompt written notice of the Claim, the indemnified party giving the indemnifying party sole control and authority with respect to the defense or settlement of the Claim, and the indemnified party reasonably cooperating (at the indemnifying party’s expense) with the indemnifying party in the defense of the Claim. The indemnifying party will not enter any settlement that imposes liability or restrictions on the indemnified party without the prior written approval of the indemnified party.
10.4. Entire Obligation. The provisions of this Section 10 set forth the entire obligation of each of the parties with respect to any claim of intellectual property infringement.
11. CONFIDENTIAL INFORMATION
11.1. Definition. “Confidential Information” means information that (a) a party designates as confidential, or (b) under the circumstances surrounding disclosure, a reasonable person would regard as confidential. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party receives from a third party who is entitled to disclose such information to receiving party without restriction on disclosure and without breach of a nondisclosure obligation, or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information.
11.2. Obligations. The receiving party will use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party will use the Confidential Information of the other party for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose the Confidential Information of the other party, without the prior written consent of the other party, except: (a) to the party’s and its Affiliates’ employees, officers, agents, professional advisors and counsel who have a legitimate need to know and are subject to obligations of confidentiality at least as restrictive as those contained herein, and (b) to the extent disclosure is required by law. If a party receives legal process that demands disclosure of the other party’s Confidential Information, such party will give sufficient notice to the other party to enable it to challenge the demand.
12. GENERAL
12.1. Binding Agreement; Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns, but neither party may assign or otherwise transfer its rights under this Agreement without receiving the express prior written consent of the other party, except that Jazzware may assign the Agreement in its entirety in connection with a merger, acquisition, sale of substantially all its assets, or other recapitalization or reorganization.
12.2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. The preprinted terms on Customer’s purchase order, Jazzware’s acknowledgement form, and any other ordering document or communication from either party will be inapplicable to any order submitted by Customer.
12.3. Notices. All notices, requests, demands, and other communications provided for under this Agreement must be given in writing and in English and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally to the party to whom the same is directed, (b) two (2) business days after deposit with a commercial overnight carrier, with written verification of receipt, or (c) five (5) business days after the mailing date, whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. Notices to Customer may also be posted on the website for the Services or by e-mail (to the address listed in Customer’s account contact information). Electronic notice will be effective as of the date of posting (for notice on the website) or as of the sent date (for e-mail notice). Physical notices to Customer will be sent to the physical address listed in Customer’s account contact information. Notices will be sent to Jazzware at the following addresses, provided Jazzware may change its address for purposes of this Section 12.3, which change of address notice will be effective on receipt by Customer:
To Jazzware: Attention: Legal Department
Jazzware, Inc.
11447 Cypress Terrace Pl.
San Diego, CA 92131-3518
12.4. Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. Exclusive jurisdiction and venue for all disputes hereunder, including any actions to interpret this Agreement, will lie solely in state or federal courts having jurisdiction over San Diego County, California.
12.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, will be deemed to be an original and all of which taken together will constitute one and the same instrument. The exchange of signature pages or agreements by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, will constitute effective execution and delivery of this Agreement by the parties.
12.6. Headings. Headings and titles in this Agreement are included for convenience only and will not affect the construction or interpretation of any provision of this Agreement.
12.7. Order of Precedence. The Order Form will not modify these Master Terms unless the Order Form specifically identifies the term to be modified and expresses a clear intent to modify such term.
12.8. Relationship of the Parties. The parties are and always will be and remain independent contractors as to each other, and at no time will either be deemed to be the agent or employee of the other. No joint venture, partnership, agency or other relationship will be created or implied because of this Agreement. Except as expressly set forth in this Agreement, each party will bear full and sole responsibility for its own expenses, liabilities, and costs of operation, and each party will be solely responsible for payment of all compensation owed to its staff assigned to perform work under this Agreement, including without limitation, payment (if any) of employment related taxes and workers’ compensation insurance. Further, neither party will have the authority to, and will not, enter any contract on behalf of the other party or any of its Affiliates, or commit them to any obligation.
12.9. Force Majeure. Except for the obligation to make payment hereunder, neither party will be liable to the other party for any loss, injury, delay, expense, or damages arising out of any cause or event not within such party’s reasonable control and without its fault or negligence including, but not limited to: Acts of God, war, riots, insurrections, embargoes, acts of civil or military authorities, fire, flood, earthquakes, accidents, strikers, internet backbone outage, or inability to secure export permits or approvals, transportation, machinery, facilities, fuel, energy, labor or materials; provided, however, that the party whose performance is delayed or prevented promptly notifies the other party of the nature and duration of the force majeure event and resumes performance as soon as reasonably possible. In the event of force majeure, time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby. If any condition constituting force majeure continues for a period of longer than ninety (90) days, either party may terminate this Agreement.
12.10. Modifications. Jazzware may change the terms and conditions of these Master Terms from time to time (“Modifications”) in its discretion. Jazzware will give Customer notice of the changes by posting an updated version of these Master Terms online or by emailing Customer. Modifications will be effective as of the date Jazzware posts them or otherwise notifies Customer of them, unless Jazzware specifies a different effective date when it makes the Modifications. Customer is responsible for checking for updates to these Master Terms. If Customer determines in its reasonable discretion that a Modification will have a material, adverse effect on Customer, then for a period of ten (10) business days after the date of notice to Customer (the “Termination Window”), Customer may, as its sole and exclusive remedy for any Modification, terminate without penalty any affected Order Form upon written notice to Jazzware. By continuing to access or use the Services after such Termination Window, Customer agrees to be bound by such Modification.
12.11. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever. In such event, the parties will negotiate, in good faith, and substitute a valid and enforceable provision that most nearly implements the parties’ intent.
12.12. Third party Beneficiaries. Nothing herein, express or implied, is intended to nor will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or about any agreement or provision contained herein or contemplated hereby.
12.13. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by both parties. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
12.14. Translations. The English version of this Agreement, regardless of whether a translation in any other language is or will be made, will be the only authentic one. Any translation of this Agreement in another language, prepared for any reason, will be a non-binding accommodation with no legal effect. The English version of this Agreement, including any amendments thereto, will govern.