This agreement (“Agreement”) between Jolt Software, Inc., dba Jolt ( “Provider,” or “We”) and you (“Subscriber,” “You” or “User”) concerns (i) the use of or subscription to the Jolt Management Platform Service (“JMPS” or “Services”) which refers to all desktop software, electronic devices, websites, mobile applications, physical products, Application Program Interfaces (APIs), cloud services, software interfaces, automated notifications (including emails, text messages, push notifications or electronic notifications), data storage, and similar or related services provided by Provider or its Affiliates, and (ii) the sale of products, whether related to the JMPS or not (“Products”), which it does now offer or which it may offer in the future. This Agreement (including its schedules) contains the complete and entire understanding and agreement between Provider and Subscriber, and supersedes any previous communications, representations, or agreements, verbal or written, related to the subject matter of this Agreement. This Agreement may not be amended orally, impliedly, or unilaterally by Subscriber, or in any other manner contrary to that permitted by this Agreement.
- User's Acknowledgment and Acceptance of Terms
- Description of Services
- Registration Data and Privacy
- Subscription Grant
Provider hereby grants to Subscriber, and Subscriber accepts, nontransferable permission to use Provider’s Services, including theJMPS, only as authorized in this Agreement. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE JMPS OR ACCESSING THE JMPS’S CONTENT. THE CONTENT, AND THE UNDERLYING SOFTWARE USED TO PRODUCE IT ARE BASED ON DATA INPUTED BY SUBSCRIBERS, ARE COPYRIGHTED AND PROVIDED FOR SUBSCRIBER’S USE. BY ACCESSING OR USING JMPS CONTENT, SUBSCRIBER IS ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT.
- Fees for Services
In consideration of the rights granted herein, including receipt of Services and the use of the JMPS, Subscriber shall pay Provider the subscription fees included in schedule A (“Fees”).
Subscriber is responsible for any applicable taxes, including without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Customer’s order of JMPS assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Form, all fees, rates and estimates exclude sales taxes. Provider is solely responsible for taxes based upon Providers’ net income, assets, payroll, property, and employees.
- Payment Terms
The Fees owed by Subscriber shall be payable in full according to the payment due date stated at Checkout (if relying on this Agreement on theJMPS) or the date of execution of this Agreement (if a hard copy is signed by both parties). Any Fees unpaid thirty (30) days after their due date shall be considered overdue. Provider shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Subscriber for Provider's costs of collection, including attorney fees, costs and disbursements.
- Maintenance, Data Backup, Security and Technical Support
Provider will maintain the servers and databases that are required for the JMPS. Provider also will regularly back up all data entered into the JMPS by Subscriber, and encrypt it during transport, to provide privacy and security. Provider has the responsibility to exercise best efforts in securing Subscriber’s data in accordance with relevant security standards and industry best practices. Subscriber is entitled to receive any technical support provided by Provider that is set forth in Schedule B. Provider reserves the right to change its technical support guidelines and procedures listed in Schedule B at any time by providing electronic notice to Subscriber. Subscriber’s continued use of the JMPS following any changes to Schedule B will constitute acceptance of such changes.
- Subscriber’s Conduct
Subscriber’s use of theJMPS is subject to all applicable laws and regulations. Subscriber is solely responsible for the substance of its communications through the JMPS. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, interactive service, or any other product feature or service that may be available to Subscriber on or through the JMPS, or other interactive service that may be available to Subscriber on or through the JMPS, Subscriber agrees that it will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates Provider’s rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, gender identity, sexual orientation, race, ethnicity, age, disability or any other protected class;
- infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
- constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, lottery or gambling;
- contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
- impersonates any person or entity, including any of our employees or representatives.
- contains the personal data of any individual that Subscriber does not have a legal basis to control and process.
Accordingly, it is Subscriber’s sole responsibility to comply with all applicable laws
regarding its use of the JMPS and with the content it inputs or maintains in JMPS, including without limitation all applicable employment and hiring laws and regulations and all record keeping and data protection regulations in connection with the collection, processing, disclosure, subject access requests, retention, and transfer of personally identifiable data under the laws of the country and any other local jurisdiction in which Buyer is operating or
collecting and transferring personal data. Provider shall have no liability related to the content Subscriber inputs into JMPS, or for record keeping requirements and data protection obligations applicable to Subscriber unless expressly assumed by Provider pursuant to this Agreement.
Subscriber agrees not to ask any end users of JMPS for, and to instruct any end users of JMPS not to input into JMPS in any way, any PHI or SPI. Should Subscriber become aware that any PHI or SPI is inputted by an end user into JMPS, Buyer agrees to promptly notify Provider and request redaction of such information from JMPS or deletion of JMPS where redaction is not feasible. As used herein PHI means Protected Health Information as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). SPI means Sensitive Personal Information consisting of date of birth, social security number, driver’s license or other state-issued identification number, or financial account information.
- Third Party Sites and Their Information, Products and Services
Our JMPS may link You to other web sites and their products and services on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These other sites linked to the JMPS may contain information or material that some people may find inappropriate, inaccurate or offensive. Because any sites linked the JMPS and owned by third parties (“Third Party Web Sites”) are not under our control, You acknowledge that We are not responsible for the accuracy, copyright compliance, legality, safety, decency, or any other aspect of the content of such Third Party Web Sites. We also are not responsible for (i) errors or omissions in any references to other parties on Third Party Web Site, or (ii) for defects in their products and services. The inclusion of such a link or reference is provided merely as a convenience to Subscriber and does not imply endorsement of, or specific business association with, the site or party by Provider, or any warranty of any kind by Provider, either express or implied, as to the fitness and merchantability of the third party products and services. Subscriber acknowledges and agrees that if it chooses any service or product offered on Third Party Web Sites, it has no remedy against Provider for any defects or other issues related to that service or product.
- Intellectual Property Ownership
- Subscriber’s Content. Under this Agreement, the Provider is not being contracted to develop custom software or other materials for Company, but merely providing access to its standard Products and Services. Any and all information that is inputted or uploaded by Subscriber in its accounts registered with Provider’s JMPS shall remain the sole and exclusive property of Subscriber. However, any ideas, suggestions, feature requests, or usage data given by Subscriber to Provider relating to general software functionality and usage behavior that leads Provider to improve or otherwise alter the JMPS and associated Services and products shall be the sole and exclusive property of Provider and may be used by the Provider to improve its Products and Services, unless otherwise agreed to separately in writing by the signatories to this Agreement. Subscriber hereby grants to Provider the right to use Subscriber’s trademark and logo on its website and related marketing materials, for the sole purpose of indicating to third parties that Subscriber is using the Services.
- Business Confidential Information
During the activities contemplated by this Agreement, Provider may become acquainted with Subscriber’s technical, sales, marketing, pricing, or other commercial information that has competitive or other business sensitive implications (“Information”) through written, oral or visual means. Subject to the narrow exceptions below, Provider agrees and acknowledges that all such Information is confidential to Subscriber and shall not use the Information, except as required to fulfill its obligations under this Agreement, and shall not disclose the Information to any third parties, including any parent or affiliated company. Provider shall also limit access to the Information within its own organization only to those employees who need to know such Information in order to implement this Agreement and who are expressly obligated to maintain such Information in confidence and in accordance with the restrictions set forth herein. These obligations shall not apply to any Information received by Provider which Provider can reasonably demonstrate (i) was in the public domain at the time of receipt by Provider; (ii) entered the public domain after receipt by Provider, but through no fault of Provider; (iii) was known by Provider prior to its receipt; (iv) is lawfully disclosed to Provider by a third party that was not under an obligation of confidence to Subscriber; (v) which Provider is compelled to disclose by law or legal process, provided Subscriber is given prompt written notice of any such requirement and an opportunity to contest such disclosure; or (vi) is not confidential to the Subscriber because it relates to technical ideas, suggestions, feature requests, or usage data given by Subscriber to Provider relating to general software functionality or usage behavior that leads Provider to improve or otherwise alter theJMPSand associated Services.
- Unauthorized Use of Materials
We respect the intellectual property of others, and We ask You to do the same. If You or any other user of our JMPS You are aware of believes its copyright, trademark or other property rights have been infringed by a posting on the JMPS, You or the other user(s) should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
- Identify in sufficient detail the intellectual property (e.g., copyrighted work) that You believe has been infringed upon (or other information sufficient to specify the intellectual property being infringed).
- Identify the material that You claim is infringing the intellectual property listed in item (a) above.
- Provide information reasonably sufficient to permit Provider to contact You (email address is preferred).
- Provide information, if possible, sufficient to permit Us to notify the owner/administrator (if not Jolt Software, Inc.) of the allegedly infringing webpage or other content that is part of, posted on or linked to the JMPS (email address is preferred).
- Include the following statement: "I have a good faith belief that use of the materials described above as allegedly infringing is not authorized by the intellectual property owner, its agent, or the law. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
- Sign the paper and send the written communication to the following address:
Designated Agent for Claimed Infringement
Jolt Software, Inc.
2901 Ashton Blvd., Ste. 300
Lehi, UT 84043
You acknowledge and agree that upon receipt of a notice of a claim of copyright or other intellectual property infringement, We may immediately remove the identified materials from the JMPS without liability to You or any other party and that the claims of the complaining party and the party that originally posted the materials may be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act (assuming the issue is copyright infringement).
- Disclaimer of Warranties
THE JMPS, AND, MORE BROADLY, ALL OF PROVIDER’S SERVICES AND PRODUCTS, AND ALL CONTENT CONTAINED WITHIN OR RELATED TO THE JMPS (“CONTENT”), ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE JMPS, ITS CONTENT, AND, MORE BROADLY, ALL THE PROVIDER’S SERVICES AND PRODUCTS WILL MEET SUBSCRIBER’S REQUIREMENTS, (B) THE SERVICES, INCLUDING THE JMPS AND ITS CONTENT, WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE PRODUCTS ARE FREE FROM ANY MANUFACTURING, DESIGN OR OTHER DEFECTS, (D) RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE JPMS, ITS CONTENT, AND MORE BROADLY PROVIDER’S SERVICES AND PRODUCTS, WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (E) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY SUBSCRIBER FROM THE JMPS, PROVIDER AND/OR AFFILIATES, WILL MEET SUBSCRIBER’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. THE JMPS AND ITS CONTENT COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. PROVIDER MAY MAKE CHANGES TO THE JMPS, ITS CONTENT, AND MORE BROADLY ITS SERVICES AND PRODUCTS, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES OR PRODUCTS LISTED ON THE JMPS, AT ANY TIME. THE CONTENT OF THE JMPS MAY BE OUT OF DATE, AND PROVIDER MAKES NO COMMITMENT TO UPDATE IT. USE OF THE JMPS, ITS CONTENT, AND MORE BROADLY PROVIDER’S SERVICES, AND/OR THE DOWNLOADING, ACCESSING OF OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE JMPS, IS DONE AT SUBSCRIBER’S OWN DISCRETION AND RISK AND WITH SUBSCRIBER’S AGREEMENT THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, LOSS OF DATA, LOSS OF PROFITS, OR OTHER COSTS INCURRED FROM SUCH ACTIVITIES. The content on the JMPS has been prepared and/or obtained for general business and information purposes only and is not intended to provide legal, financial, medical, tax, or professional advice. Through use of the JMPS, Subscriber may have the opportunity to engage in commercial transactions with other users and vendors. Subscriber acknowledges that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandize and services and Subscriber. PROVIDER MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE JMPS, AND SUBSCRIBER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT ITS OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE JMPS FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY PROVIDER OR ANY OF ITS AFFILIATES. Content available through the JMPS may represent the opinions and judgments of an information provider, JMPS user, or other person or entity not legally connected with PROVIDER. Subscriber does not endorse, nor is it responsible for the accuracy or reliability of, any opinion, advice, or statement made by anyone other than an authorized Jolt Software, Inc. spokesperson speaking in his/her official capacity. Subscriber understands and agrees that temporary interruptions of the JMPS may occur as normal events. Subscriber further understands and agrees that Provider has no control over either third party web sites Subscriber may access in the course of its use of the JMPS or the electrical power sources supporting those networks, and therefore, delays and disruption of other network transmissions are completely beyond Provider’s control. Subscriber understands and agrees that Provider’s Services available to Subscriber are provided "AS IS" and that Provider assumes no responsibility for the timeliness, deletion, miss-delivery or failure to store any User communications or personalization settings. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability
In no event shall Provider or its Affiliates be liable for any direct, indirect, incidental, consequential, compensatory, special, exemplary, or punitive damages, including any damages resulting from lost or exposed data or lost profits arising from the use of the JMPS, its content, and more broadly Provider’s Products and other Services, even if Provider has been advised of the possibility of such damages as a result of their use. As part of this limitation of liability, Provider shall not be liable for any damages Subscriber may suffer from the use of Provider’s Services and/or Products, including the JMPS, its content, lost data entered into the JMPS, or otherwise. The foregoing limitation of liability shall apply whether the claim is based upon principles of contract, warranty, negligence, or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO SUBSCRIBER. In such cases, Provider’s maximum aggregate liability (whether in contract, tort or any other form of liability) for damages or loss, howsoever arising or caused, whether or not arising from Provider’s negligence, shall in no event be greater than the Set Up and Subscription Fees specified in Schedule A of this Agreement and the total value of any defective component / product.
Upon a request by Provider, Subscriber agrees to defend, indemnify, and hold Provider and its Affiliates harmless from all liabilities, claims, costs, and expenses, including attorney’s fees, which arise from Subscriber’s use or misuse of theJMPS. Provider reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber will cooperate with Provider in asserting any available defenses.
- Subscriber’s Account and Password
Subscriber is solely responsible for maintaining the confidentiality of its password and account and for any and all statements made and acts or omissions that occur through the use of its password and account. Therefore, Subscriber must take all necessary steps to ensure that others do not gain access to its password and account. Provider’s personnel will never ask Subscriber for its password. Subscriber may not transfer or share its account with anyone, and Provider reserves the right to immediately terminate Subscriber’s account if it does transfer or share its account.
- Participation in Promotions
From time to time, the JMPS may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on the JMPS. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between You and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
- E-mail, Messaging, Blogging, and Chat Services
- International Use
Although the JMPS may be accessible worldwide, accessing the JMPS from territories where its content is illegal is prohibited. Those who choose to access the JMPS from other locations outside of the United States do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the JMPS is void where prohibited by applicable law.
- Term and Termination of Use of Services
The Initial Term of this Agreement shall commence on the date that Subscriber registers a location(s) for JMPS and shall continue until the end of the subscription period as specified by the subscription plan that Subscriber selects for their location(s) in JMPS. All subscriptions that are specified as “billed monthly” in JMPS have a one month Initial Term and all subscriptions that are specified as “billed annually” in JMPS have a twelve month Initial Term. Following the Subscriber’s then effective Initial Term or Renewal Term, Subscriber’s subscription(s) will automatically renew for a period of time equal to the length of the Initial Term (“Renewal Term”), unless Subscriber cancels their subscription within JMPS. Such cancelation will be effective at the end of Subscriber’s then effective Initial Term or Renewal Term. The Initial Term and any Renewal Term(s) shall constitute the Term of this Agreement (“Term”).
- Governing Law
The JMPS (excluding any linked sites) is controlled by Provider from its offices within the State of Utah, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Utah, by accessing the JMPS both parties agree that the statutes and laws of the State of Utah, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of the JMPS and the purchase of Products and Services available through the JMPS. Each party agrees and hereby submits to the exclusive personal jurisdiction and venue any court of competent jurisdiction within the State of Utah with respect to such matters.
All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to Provider must be sent to the attention of Customer Service at firstname.lastname@example.org, if by email, or to Jolt Software, Inc., 2901 Ashton Blvd., Ste. 300, Lehi, UT 84043, if by conventional mail. Notices to Subscriber may be sent to the physical or electronic mailing address supplied by Subscriber as part of its Registration Data. In addition, Provider may broadcast notices via email or messages through the JMPS to inform Subscriber of changes to the JMPS or other matters of importance, and such broadcasts shall constitute notice to You at the time of sending.
- Disputes Between Provider and Subscriber
- Prohibited Acts
Provider reserves the right to deny access to the JMPS to any person or to terminate this Agreement if Provider reasonably believes that it is not being used for its intended purpose, including the violation of any provision of this Agreement or of applicable law and/or the occurrence of one or more of the following prohibited acts:
- Except as authorized in this Agreement, no copies of the JPMS or any portions thereof may be made by Subscriber or any person under its authority or control. Subscriber agrees that it will not alter, publish, copy, cut, modify or transform the JMPS content, or any component of it, in any form to any storage medium, known or unknown, for any purpose whatsoever, except as authorized. Subscriber will be held legally responsible for any trademark, patent, and/or copyright infringement or damages to Provider that are caused or encouraged by Subscriber’s failure to abide by the terms of this Agreement.
- Although individual accounts on the JPMS are segregated and secured, Subscriber agrees not to access, or attempt to access, the data and content on the JMPS that are provided by others. Subscriber also agrees not to allow children under 13 years of age to use the JMPS, including entering its own data on the JMPS.
- Information Collected Automatically
In some cases, the JMPS automatically (i.e., not via registration) collects technical information when You, the Subscriber, connects to the JMPS. Examples of this type of information include the type of internet browser You are using, the type of computer operating system You are using, and the domain name of the website from which You linked to our site. Also, when You use the JMPS, some information may be stored on your computer in the form of a "cookie" or similar mechanism. You consent to the automatic collection of such information through your use of our Services.
If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement with regard to that term, condition or provision. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
- Force Majeure
In addition to the Disclaimer of Warranties and Limitation of Liability provisions (Sections 13 and 14 above), Provider shall also not be held responsible for any failure of performance to make timely delivery of all or any part of its Services and products in the event such failure was due, in whole or in part, to federal, provincial or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire, power shortage, network interruption, water or other damage to or destruction of, in whole or in part, the Provider’s offices, or any other cause, act of God, contingency or circumstances not subject to the reasonable control of Provider, which causes delays or hinders the delivery of Services and its products. Provider shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance that affects the performance of its obligations.
Schedule A – Subscription Fees for Services
Subscriber is subject to Set Up and Subscription Fees set forth on the JMPS website that must be paid on a timely basis. Accounts are considered delinquent and may be either fully or partially suspended when payment of the Fees is overdue by 21 calendar days. The Provider makes no guarantee to retain data for delinquent accounts. Delinquent accounts may be reactivated, if the data has still been retained by the Provider, by paying all outstanding Subscription Fees. The Subscription Fees are subject to change with advanced notice, and may increase periodically due to improvements to Services or otherwise. Subscriber will not be required to pay any additional fees or a difference in price due to an increase in the Subscription Fees for time already paid for. Credits for additional use may be available via referrals and other promotions as advertised on the JMPS or Provider’s website.
Schedule B – Technical Support
Provider agrees and is pleased to provide technical support, which is based on the availability of technical support staff.
This document was last updated on August 19th, 2019