JumpDEMAND Terms of Services
Last Modified: January 21, 2013
PLEASE READ THE CLIENT TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE JUMPDEMAND SERVICE. This Agreement is a legally binding contract between you (the “Client”) and JumpDEMAND Inc. The Services (as defined below) is provided to you by JumpDEMAND Inc. subject to this Agreement. By engaging JumpDEMAND Inc. you are expressly acknowledging that you understand, accept and agree to be legally bound by this Agreement. BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE. JumpDEMAND Inc. may update and change any part or all of this Agreement. If we update or change this Agreement, we will post the updated version on this website page. The updated Agreement will become effective on the next business day after being posted. JumpDEMAND Inc. is not responsible for providing you with direct notice of any updates or changes. When we change this Agreement, we will modify the “Last Modified” date above. We strongly encourage you to review this Agreement periodically.
“Agreement” means these Terms of Services and all materials referred or linked to in these Terms of Services.
“Billing Period” means the period of time for which Client has agreed to pay fees for the Services, from time to time and will be the same as or shorter than the Contract Term. For example, if Client subscribes to the Services for one year, with monthly credit card payments, the Billing Period will be one month.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Services that enable Client to communicate with the public at large or with a group.
“Contact” means the contact information, typically unique email address, of a Client’s client, prospect, lead, or other individual (other than a User) used with the Services.
“Contact Information” means the name, company affiliation, job title, email address, online user name, telephone number, and similar publicly available information voluntarily submitted by visitors to Client’s landing pages on the Services, as well as navigational data relating to each visitor’s activity on Client’s webpages on the Services. Contact Information does not include Sensitive Information.
“Contract Term” means the Initial Contract Term and any Renewal Contract Term(s), as defined in Section 6, below.
“Client Data” means all Contact Information and other permitted information submitted by Client to, or collected by Client via, the Services. Client Data does not include Sensitive Information.
“Client Materials” means all materials that Client provides or posts, uploads, inputs or submits for public display through the Services. For clarity, suggestions, feedback and comments relating to the Services provided by Client personnel to JumpDEMAND are not Client Materials.
“Pay per Click Ad Campaign Budget” means the maximum amount budgeted for ‘Pay Per Click’ advertising per month with search engines.
“JumpDEMAND” means JumpDEMAND Inc. and any entity which directly or indirectly controls, is controlled by, or is under common control with JumpDEMAND Inc.
“JumpDEMAND Content” means all code, content, intellectual property, logic, processes, software and technology incorporated into, derived from or created by the Services, but expressly excludes all Client Data and Client Materials. For the purposes of the foregoing, ‘content’ shall include without limitation, all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags.
“Sensitive Information” means credit or debit card numbers, personal financial account information, passport numbers, driver’s license numbers or similar identifiers, or employment, financial or health information.
“Services” means the Client’s specific subscription to JumpDEMAND’s web-based inbound marketing applications, tools and platform, as developed, operated, and maintained by JumpDEMAND and any ancillary online or offline products and services, including website hosting, provided to Client by JumpDEMAND, to which Client is being granted access to under this Agreement. The Services includes the JumpDEMAND Content, and does not include training services, consulting services, and Third-Party Products.
“Third-Party Products” means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Services, and are identified as being provided by third parties, including but not limited to non-JumpDEMAND applications.
“Tracking Services” refers to tracking information that JumpDEMAND provides to Client with respect to the Services, which may include but is not limited to: Client webpage tracking, call to action page tracking, e-mail tracking, web event tracking or phone tracking. “Tracking Information” refers to data and statistics concerning the performance of the particular campaigns undertaken or coordinated by JumpDEMAND.
“User(s)” means Client’s employees, representatives, consultants, contractors or agents who are authorized by Client to use the Services and who have been supplied user identifications and passwords by Client (or by JumpDEMAND at Client’s request).
2. The Services
During the Contract Term and as provided in this Agreement, JumpDEMAND will provide Client access to the Services. The Services shall be as selected by the Client during the subscription process. As part of the subscription process, the Client may set limits with respect to the number of Contacts, Pay Per Click Ad Campaign Budget, competitors tracked, emails per month, and lead nurturing campaigns per month, as detailed in JumpDEMAND’s pricing and subscription terms, currently available at http://www.ActiveDEMAND.com/pricing or otherwise described in the Client quote. Client’s access to and use of the Services is governed by the terms of this Agreement. JumpDEMAND reserves the right to modify the Services from time to time, including the addition or deletion of features and functions, in order to improve Clients’ results. Nothing in this Agreement shall prohibit JumpDEMAND from making such changes to the Services, provided that no such change to the Services shall materially reduce the functionality of the Services provided to Client during the Contract Term. JumpDEMAND reserves the right to provide some or all elements of the Services through use of third party providers. Client may subscribe to additional elements of the Services from time to time, as agreed to between the parties, and such added elements of the Services shall, starting with the date on which the parties agree to their addition, be included in the Services provided and fees payable under this Agreement.
3. Client Support
Support for Client’s use of the Services is included in Client’s subscription fee. Phone support for the Services is available 8AM to 5PM Mountain Time, Monday through Friday, excluding Canadian national holidays. Support responses are provided during phone support hours only. JumpDEMAND attempts to respond to support questions within one business day; in practice, JumpDEMAND’s responses are generally even faster. JumpDEMAND does not promise or guarantee any specific response time.
4. Consulting Services
JumpDEMAND offers consulting packages to provide training and Internet marketing expertise to help JumpDEMAND’s Clients succeed. Fees for these consulting services are in addition to Client’s fees for the Services and are payable at the start of the engagement. Consulting services may be customized pursuant to a mutually agreed upon written statement of work provided to the Clients upon the earlier of its request or selection of its selection of desired consulting services (each, a “Statement of Work”). Hours/Day(s) purchased as part of a consulting package are nonrefundable and expire as set forth in the order form but in any case no later than 180 days from purchase. The consulting services are provided by JumpDEMAND as separate and distinct from the Services and are not required for Client’s use or enjoyment of the Services. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of both JumpDEMAND and Client.
5. Fees and Payments
The fee charged by JumpDEMAND for the Services will be as agreed to by Client in the applicable order form and will not change during a Billing Period, except as provided in this Section.
- Payment for Contract Term. In consideration for the Services to be provided by JumpDEMAND, Client agrees to pay the monthly subscription fees set forth in the order form or sales quote provided to Client (the “Subscription Fees”) Paid Subscription Fees are non-refundable. In consideration for consulting services to be provided by JumpDEMAND, if any, Client agrees to pay the fees as outlined in the quote, set forth in the Statement of Work or as otherwise provided to Client by JumpDEMAND, (the “Consulting Fees”, together with the Subscription Fees, the “Fees”).
- Price Increases. General price increases established by JumpDEMAND during a Contract Term will not affect Client during a Billing Period. JumpDEMAND will charge or invoice Client under the new price structure, starting with the next Billing Period in the Contract Term. JumpDEMAND will provide the Client with 30 day written notice in the event of any general price increases.
- Pay Per Click Ad Campaign Budget. If Client would like to increase or decrease the maximum Pay Per Click Ad Campaign Budget in a particular Billing Period, Client must provide JumpDEMAND with 30 days written notification with the new maximum Pay Per Click Ad Campaign Budget. The Subscription Fees will be adjusted at the beginning of the next Billing Period for the new maximum Pay Per Click Ad Campaign Budget, and JumpDEMAND will charge or invoice Client for that adjusted amount. This process will continue for each Billing Period during the Contract Term. JumpDEMAND pricing and limits will be as set forth at http://www.ActiveDEMAND.com/pricing or in the order form or sales quote provided to Client. Fees will not decrease, even if there is a subsequent reduction in the number of contacts or Pay Per Click Ad Campaign Budget.
- Payment by credit card. Client will provide JumpDEMAND with valid and current credit card information or bank account information. Client authorizes JumpDEMAND to charge Client’s credit card or bank account for all fees payable at the beginning of the Initial Contract Term and all subsequent Billing Periods.
- Payment against invoice. JumpDEMAND will invoice Client at the beginning of the Initial Contract Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable upon receipt of the date of the invoice. Payment instructions shall be as set out on JumpDEMAND’s invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.
- Payment Information. Client shall ensure that all details provided regarding the Client’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-negotiable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are payable in advance throughout the Contract Term.
- Late Payments. Payments not received by the invoice due date will be assessed a late charge at the rate of 2% monthly, compounded daily, on any unpaid balance.
All quoted prices and fees are exclusive of sales, value added and similar taxes, which JumpDEMAND will charge or invoice as applicable, and Client agrees to pay any such taxes applicable to its use of the Services.
6. Contract Term and Renewal
The “Initial Contract Term” shall begin on the effective date of Client’s subscription and expire at the end of the period selected during the subscription process, unless earlier terminated in accordance with this Agreement. Unless either party gives the other notice that it does not intend to renew this Agreement at least 30 days in advance of the end of the Contract Term, this Agreement will be automatically renewed for a “Renewal Contract Term”, which shall be: (i) on the terms and conditions of this Agreement then in effect, (ii) subject to the pricing structure and applicable levels provided for renewal terms in this Agreement or, if not so specified, as then posted by JumpDEMAND at http://www.ActiveDEMAND.com/pricing, and (iii) for a term equal to the shorter of the Initial Contract Term or one year. Each Contract Term, unless renewed, shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Contract Term cannot be canceled before its expiration. Fees for each Contract Term are non-cancelable, and therefore no refunds of fees paid in advance will be made, except as specifically provided for in this Agreement.
7. Search Engine Ranking Guarantees
JumpDEMAND cannot legally or ethically make any guarantee or promise as to where the Client website will rank within search engines. Search engine results are controlled solely by each individual search engine and not by JumpDEMAND. These search engines have complicated algorithms that evaluate pages on the web against keyword searches performed by users. It is impossible for any search marketing company to guarantee specific results for any website or webpage because they are not in control of the search engines. The search marketing company can only control the techniques applied in an effort to achieve the desired result (higher placement).
8. JumpDEMAND’s Proprietary Rights
This is an Agreement for access to the Services. This Agreement does not and shall not grant Client with a license, interest in or right to any of JumpDEMAND’s Content. The provision of the Services is based upon proprietary JumpDEMAND technology which includes but is not necessarily limited to the JumpDEMAND Content. Client acknowledges that the JumpDEMAND Content is JumpDEMAND’s exclusive property and nothing in this Agreement or the provision of the Services gives Client any interest in or right thereto. The Services are protected by all applicable intellectual property and other laws, including patent, trademark, and copyright laws. JumpDEMAND owns and retains all copyrights and other proprietary interests in the JumpDEMAND Content. The JumpDEMAND Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Client agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the JumpDEMAND Content or the Services, in whole or in part, by any means, except as expressly authorized in writing by JumpDEMAND. JumpDEMAND, the JumpDEMAND logos, and other marks used by JumpDEMAND from time to time are trademarks and the property of JumpDEMAND. The appearance, layout, color scheme, and design of the JumpDEMAND.com site are protected trade dress. Client does not receive any right or license to use the foregoing. JumpDEMAND may use and incorporate into the Services any suggestions or other feedback relating to the Services provided by Client personnel, without payment or condition.
9. Client’s Proprietary Rights
As between the parties, Client shall own and retain all rights to the Client Materials and Client Data. Client grants permission to JumpDEMAND and its licensors to use the Client Materials and Client Data only as necessary to provide the Services to Client, and not for any other purpose. For clarity, Client expressly acknowledges and agrees that it shall have no interest in or right to any JumpDEMAND Content.
Client grants JumpDEMAND the right to add Client’s name and company logo to its Client list and web site. Except for the foregoing, neither party may use the other party’s name or logo without the other party’s prior written consent.
11. Client Data
12. Tracking and Reporting
The Services shall include Tracking Services, as JumpDEMAND deems appropriate, in its sole discretion, to enable Client to assess the performance of any campaign. JumpDEMAND Services shall provide any of the three methods of tracking, but not limited to: (i) ‘Web Tracking’, which shall include ‘Call to Action Page Tracking’, ‘Webpage Page Tracking’, ‘Web Event Tracking’ and ‘E-Mail Tracking’; (ii) ‘Phone Tracking’; or (iii) ‘Web Tracking’ and ‘Phone Tracking’ which shall include both (i) and (ii).
13. Use and Limitations of Use
Client’s access to the Services is conditional upon its covenant to not:
- use, or allow its Users to use, the Services in violation of the terms of this Agreement;
- copy, modify, create a derivative work from, reverse engineer or reverse assemble the Services, or otherwise attempt to discover any source code, or allow any third party to do so;
- sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the JumpDEMAND Content or Services in any way;
- use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Services in a manner that sends more request messages to the JumpDEMAND servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- use the Services in any manner that damages, disables, overburdens, or impairs any JumpDEMAND website or interferes with any other party’s use and enjoyment of the Services;
- attempt to gain unauthorized access to the Services;
- access the Services by any means other than through the interface that is provided by JumpDEMAND for accessing the Services;
- use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
Any unauthorized use of any JumpDEMAND Content or the Services may violate patent, copyright, trademark, and other laws. Client agrees to cooperate with JumpDEMAND to prevent any unauthorized copying of the Services or JumpDEMAND Content.
14. Acceptable Use of Communications Services
15. Third-Party Products
Third-Party Products and sites are not under JumpDEMAND’s control, and JumpDEMAND is not responsible for the contents of any Third-Party Product or site, including without limitation any link contained in a Third-Party Product or site, or any changes or updates to a Third-Party Product or site. JumpDEMAND is not responsible for any other form of transmission received from any Third-Party site. Third-Party Products and sites are provided to Client only as a convenience, and the inclusion of any Third-Party Product or site does not imply endorsement by JumpDEMAND of the Third-Party Product or site or any association of JumpDEMAND with it.
Client agrees to indemnify, defend and hold JumpDEMAND harmless, at Client’s expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against JumpDEMAND (or its officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of (a) Client’s use of the Services; (b) Client’s noncompliance with or breach of this Agreement, (c) Client’s use of Third-Party Products, or (d) the unauthorized use of the Services by any other person using Client’s user information. Client will indemnify JumpDEMAND for any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) of any kind whatsoever, directly and to the extent arising out of any Action.
17. Disclaimers; Limitations of Liability
THE JUMPDEMAND CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. JUMPDEMAND AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR THE JUMPDEMAND CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. JUMPDEMAND AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE AND THE JUMPDEMAND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM JUMPDEMAND IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JUMPDEMAND AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICE, OR FOR ANY JUMPDEMAND CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF JUMPDEMAND OR ANY OF JUMPDEMAND’S SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, JUMPDEMAND IS DETERMINED TO HAVE ANY LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, CLIENT AGREES THAT THE AGGREGATE LIABILITY OF JUMPDEMAND AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. JUMPDEMAND DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CLIENT. JUMPDEMAND’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND JUMPDEMAND’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION. CLIENT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CLIENT UNDERSTANDS AND AGREES THAT ABSENT CLIENT’S AGREEMENT TO THIS LIMITATION OF LIABILITY, JUMPDEMAND WOULD NOT PROVIDE THE SERVICE TO CLIENT.
18. Termination, Suspension and Expiration
- Termination – Either party may terminate this Agreement (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or immediately if (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) the Services fail to meet the reasonable expectations of Client.
- Suspension for Prohibited Acts – JumpDEMAND may suspend Client’s or any User’s access to the Services for any of the following causes, and JumpDEMAND shall provide prompt electronic or telephonic notice of such event: (i) any use of the Services by Client that violates applicable local, provincial, state, federal, or foreign laws or regulations or the terms of this Agreement, or (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person.
- Suspension for Non-Payment – JumpDEMAND may suspend Client’s access to all or any part of the Services for cause upon 10 days’ notice to Client of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. JumpDEMAND will not suspend the Services while Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Suspension for Present Harm – If any Client website on, or use of, the Services: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Services or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to JumpDEMAND or others, then JumpDEMAND may, with reasonably contemporaneous electronic or telephonic notice to Client, suspend all or any access to the Services. In this extraordinary circumstance, JumpDEMAND will use commercially reasonable efforts to limit the suspension to the affected portion of the Services and promptly resolve the issues causing the suspension of the Services.
- Effect of Termination or Expiration – Immediately upon termination or expiration of this Agreement as provided herein, Client shall cease all use of the Services and return or destroy all JumpDEMAND Content in its possession. JumpDEMAND shall immediately be relieved of its obligations to provide Client with tracking services, and forward calls or emails. If Client terminates this Agreement in accordance with (a) above, JumpDEMAND shall promptly refund any fees that Client has previously paid covering use of the Services after the effective date of such termination. If JumpDEMAND terminates this Agreement in accordance with (a) above, Client shall promptly pay all unpaid fees due through the end of the Contract Term. Other than as provided herein, fees are non-refundable.
- Retrieval of Client Data – Upon request by Client made within 30 days after the date of termination or expiration of this Agreement, JumpDEMAND will provide Client with temporary access to the Services to retrieve, or JumpDEMAND will provide Client with copies of, all Client Data then in its possession or control. After such 30-day period, JumpDEMAND shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or control.
- Amendment; No Waiver – JumpDEMAND may update and change any part or all of this Agreement, including but not limited to the fees and charges associated with the use of the Services. If we update or change this Agreement, we will post the updated Agreement at http://www.ActiveDEMAND.com/terms-of-use. The updated Agreement will become effective and binding on the next business day after they are posted. When we change this Agreement, we will modify the “Last Modified” date above. We encourage you to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
- Applicable Law – To the maximum extent permitted by law, this Agreement shall be governed by the laws of the Province of Alberta, Canada without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Calgary, Alberta, Canada in all disputes arising out of or relating to the use of the Services or this Agreement. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.
- Force Majeure – Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted – Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued.
- Relationship of the Parties – JumpDEMAND and Client agree that no joint venture, partnership, employment, or agency relationship exists between Client and JumpDEMAND as a result of this Agreement or Client’s use of the Services.
- Compliance with Laws – JumpDEMAND will comply with all applicable laws in the provision of the Services and its handling of Client Data. JumpDEMAND’s provision of the Services is subject to existing laws and legal process, including JumpDEMAND’s rights and obligations to cooperate and comply with governmental, court and law enforcement requests or requirements relating to Client’s use of the Services or information provided to or gathered by JumpDEMAND with respect to such use. JumpDEMAND reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
- Severability – If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
- Notices – Notice shall be sent to the contact address set forth here (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To JumpDEMAND: JumpDEMAND, Inc., #202, 2057 – 111 Street NW, Edmonton, Alberta Canada T6J 4V9, Attention: General Counsel. To Client: Client’s address as provided in JumpDEMAND’s account Information for Client. JumpDEMAND may give electronic notices applicable to its Services Client base by means of a general notice via the Services and may give electronic notices specific to Client by email to appropriate Client e-mail addresses on record in JumpDEMAND’s account information for Client. JumpDEMAND may give telephonic notice to Client by calls to appropriate numbers on record in JumpDEMAND’s account information for Client.
- Entire Agreement – Unless otherwise expressly stated herein, this Agreement, along with any JumpDEMAND exhibit or addendum hereto, including any order form, constitutes the entire agreement between Client and JumpDEMAND with respect to the Services and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Client and JumpDEMAND with respect to the subject of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the terms of such exhibit, addendum or order form shall prevail. JumpDEMAND objects to and rejects any additional or different terms proposed by Client, including those contained in Client’s purchase order, acceptance form or website. JumpDEMAND’s failure to object elsewhere to any provisions of any subsequent document, communication, or act of Client shall not be deemed a waiver of any of the terms hereof. The party’s obligations hereunder are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by JumpDEMAND regarding future functionality or features of the Services.
- Assignment – Client will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without JumpDEMAND’s prior written consent. JumpDEMAND may assign or transfer this agreement to any successor.
- Headings – The headings of sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
- Language – It is the express wish of the parties that this agreement and all related documents be drawn up in English.
- Contract for Services – The parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Client is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
- Export – Client agrees to comply with all applicable export laws.
- Authority – Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival – The following sections shall survive the expiration or termination of this Agreement: Fees and Payments, Proprietary Rights, Publicity, Indemnification, Disclaimers, Limitations of Liability, Termination, Suspension and Expiration, and General.