Spark End User License Agreement
THIS IS A LEGAL AGREEMENT between "you," the end user of the Spark software and any related plugin software, and CoolServlets, Inc. DBA Jive Software, a Delaware limited liability company ("Jive Software").
BY COMPLETING THE ONLINE REGISTRATION FORM AND CLICKING THE "I AGREE" BUTTON, YOU SUBMIT TO JIVE SOFTWARE AN OFFER TO OBTAIN THE RIGHT TO USE THE LICENSED PRODUCTS (DEFINED BELOW) UNDER THE PROVISIONS OF THIS END USER LICENSE AGREEMENT (THE "AGREEMENT"), UNLESS A SEPARATE LICENSE AGREEMENT, WHICH, EXPRESSLY BY ITS TERMS, HAS PRECEDENCE OVER THIS AGREEMENT, HAS BEEN SIGNED BY BOTH PARTIES.
BY CLICKING THE "I AGREE" BUTTON, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIES (COLLECTIVELY,"YOU") WISHING TO USE THE LICENSED PRODUCTS PURSUANT TO THIS AGREEMENT. If YOU DO NOT HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY OR YOU OR SUCH PERSON OR ENTITY do not agree to any of the terms below, JIVE SOFTWARE is unwilling to PROVIDE THE LICENSED PRODUCTS TO THE LICENSEE, and you should click on the "Do Not Accept" button below to discontinue the REGISTRATION process.
As used in this Agreement, the capitalized term "Licensed Products" means, collectively, (a) the freeware version of the Spark instant messaging software("Spark"), (b) the related plugin software for which no fee is charged, as set forth in the registration form ("Free Plugins"), (c) the related plugin software for which a fee is charged, as set forth in the registration form ("Commercial Plugins") and (d) any and all enhancements, upgrades, and updates that may be provided to you in the future by Jive Licensed Products from time to time and in its sole discretion ("Upgrades").
Section B applies solely with respect to Spark and any Free Plugins. Section C applies solely with respect to Commercial Plugins to Spark. The remainder of this Agreement applies to all Licensed Products.
A. Ownership
The Licensed Products and any accompanying documentation are owned by Jive Software and ownership of the Licensed Products and such documentation shall at all times remain with Jive Software. Copies are provided to you only to allow you to exercise your rights under this Agreement. This Agreement does not constitute a sale of the Licensed Products or any accompanying documentation, or any portion thereof. Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights, trade secrets, trademarks or other intellectual property rights relating to or in the Licensed Products or any accompanying documentation other than as expressly set forth in the license grants in this Agreement. All rights not expressly granted to you under this Agreement are reserved by Jive Licensed Products.
B. Grant of License Applicable To Spark and any Freeware Plugins
Subject to the terms and conditions set out in this Agreement, Jive Software grants you a limited, nonexclusive, nontransferable, nonsublicensable, and revocable right to use the Spark and any Free Plugins, together the "Free Licensed Products," solely in accordance with the following terms and conditions:
1. Use of the Free Licensed Products. The Free Licensed Products is being distributed as freeware. This means it may be freely used, copied and distributed as long as it is not sold or distributed for any consideration and all original files are included, including this Agreement and Jive Software's copyright notice. You may use the Free Licensed Products on as many computers as you require.
2. Distribution Permitted. You may make copies of your copy of the Free Licensed Products to give to others provided that such copies are not modified from the original downloaded copy of the Free Licensed Products. You may not charge a fee for distributing copies of the Free Licensed Products except that freeware distribution companies may charge their normal shipping and handling fees not to exceed $5.00 U.S. per copy. If any copies of the Free Licensed Products are distributed, Jive Licensed Products requires that you send Jive Licensed Products an e-mail addressed to info@jivesoftware.com notifying Jive Licensed Products of such distribution and the identity of the person or entity receiving the copy of the Free Licensed Products including a listing of which products such person received.
3. Termination. Jive Software may terminate your license in the Free Licensed Products at any time, for any reason or no reason.
4. Fees. There is no license fee for the Free Licensed Products. If you wish to receive the Commercial Plugins (defined below) for Spark, you will be required to pay the applicable license fee.
C. Grant of License Applicable To any Commercial Plugins for Spark
Subject to the terms and conditions set out in this Agreement, Jive Software grants you a limited, nonexclusive, nontransferable, nonsublicensable and revocable right to use the Commercial Plugins solely in accordance with the following terms and conditions:
1. Use of Commercial Plugins. You may download and internally use the Commercial Plugins on multiple computers owned, leased or rented by you; however, you are only allowed to run the Commercial Plugins on (a) your own computer, or (b) on as many computers as you have purchased seat licenses ("Seat Licenses"), as listed on the product invoice ("Invoice") made available to you via the world wide web after you have submitted a purchase order for such Commercial Plugins, or on the receipt ("Receipt") made available to you via the world wide web after you have submitted an online order for such Commercial Plugins. All copies of Spark and its Commercial Plugins must include Jive Licensed Product's copyright notice.
2. Distribution Prohibited. You may not distribute copies of the Commercial Plugins for use by any individual other than to those computers for which you have purchased the Commercial Plugins Seat Licenses. Distribution to or allowing any third party access or use of the Commercial Plugins by you, whether by means of a service bureau, lease or otherwise, is hereby expressly prohibited.
3. Fees. You shall pay to Jive Software all "Fees" consisting of "License Fees" for the Licensed Products and related Maintenance and Support Fees ("Maintenance and Support Fees"). Maintenance and Support Fees are good for one (1) year for application for which Maintenance and Support Services Fee has been paid as of the date of the invoice or online purchase and/or any anniversaries of such date, and then annual payment of Maintenance and Support Services Fee required for renewal thereafter, unless Licensee has paid in advance for future years. All such Fees shall be as listed on the Invoice and/or Receipt.
4. Maintenance and Support. Jive Licensed Products will provide you with support services ("Support Services") for a period that begins on the purchase date and ends 365 days later, unless you elect to continue paying the Maintenance and Support Fees. The nature, scope and extent of Support Services shall be as set forth on Jive Software's website at http://www.jivesoftware.com/support/overview.jsp. Support terms are subject to change in Jive Software's sole discretion. Jive Software will also provide you with Upgrades for a period that begins on the purchase date and ends 365 days later, unless you elect to continue paying the Maintenance and Support Fees. Such Upgrades will include any Upgrades for Spark and the Commercial Plugins that are released by Jive Licensed Products for general distribution during the one year period for which you are entitled to receive free Upgrades. Jive Licensed Products has no obligation to provide you with any Upgrades that are not released for general distribution to Jive Licensed Products's other licensees. Nothing in this Agreement shall be construed to obligate Jive Licensed Products to provide Upgrades to you under any circumstances.
D. Prohibited Conduct
You represent and warrant that you will not violate any of the terms and conditions set forth in this Agreement and that:
You will not, and will not permit others to: (i) reverse engineer, decompile, disassemble, derive the source code of, modify, or create derivative works from the Licensed Products; or (ii) use, copy, modify, alter, or transfer, electronically or otherwise, the Licensed Products or any of the accompanying documentation except as expressly permitted in this Agreement; or (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Licensed Products whether in a stand-alone configuration or as incorporated with other software code written by any party except as expressly permitted in this Agreement.
You will not use the Licensed Products to engage in or allow others to engage in any illegal activity.
You will not engage in use of the Licensed Products that will interfere with or damage the operation of the services of third parties by overburdening/disabling network resources through automated queries, excessive usage or similar conduct.
You will not use the Licensed Products to engage in any activity that will violate the rights of third parties, including, without limitation, through the use, public display, public performance, reproduction, distribution, or modification of communications or materials that infringe copyrights, trademarks, publicity rights, privacy rights, other proprietary rights, or rights against defamation of third parties.
You will not transfer the Licensed Products or utilize the Licensed Products in combination with third party software authored by you or others to create an integrated software program which you transfer to unrelated third parties.
E. Upgrades, Updates And Enhancements
All Upgrades shall be deemed to be part of the Licensed Products and will be subject to this Agreement.
F. Disclaimer of Warranty
THE LICENSED PRODUCTS ARE PROVIDED ON AN AS IS BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES THAT IT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, WITH CLEAR TITLE OR NON-INFRINGING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE AND AGREEMENT. NO USE OF THE LICENSED PRODUCTS ARE AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. JIVE SOFTWARE DOES NOT GUARANTEE THAT ANY OF THE LICENSED PRODUCTS SHALL MEET YOUR SPECIFIC NEEDS.
G. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JIVE SOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, JIVE SOFTWARE'S COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS LICENSE SHALL NOT EXCEED IN THE AGGREGATE (1) WITH RESPECT TO COMMERCIAL PLUGINS, THE SUM OF THE FEES YOU PAID FOR THE LICENSE TO SUCH COMMERCIAL PLUGINS AND (2) WITH RESPECT TO FREE LICENSED PRODUCTS, $100.
H. Export Control
The Licensed Products may contain encryption and is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries, including controls on encryption products. You agree that you will not export, re-export or transfer the Licensed Products in violation of any applicable laws or regulations of the United States or the country where you legally obtained it. You are responsible for obtaining any licenses to export, re-export, transfer or import the Licensed Products.
In addition to the above, the Licensed Products may not be used by, or exported or re-exported to: (i) any U.S. or EU sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) to any person, entity or organization or other party identified on the U.S. Department of Commerce.s Table of Denial Orders or the U.S. Department of Treasury.s lists of .Specially Designated Nationals and Blocked Persons,. as published and revised from time to time; (iii) to any party engaged in nuclear, chemical/biological weapons or missile proliferation activities, unless authorized by U.S. and local (as required) law or regulations.
I. Legends and Notices
You agree that you will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Licensed Products or any accompanying documentation.
J. Term and Termination
This Agreement is effective upon your acceptance as provided herein and payment of the applicable Fees (if any), and will remain in force until terminated. You may terminate the licenses granted in this Agreement at any time by destroying the Licensed Products and any accompanying documentation, together with any and all copies thereof. The licenses granted in this Agreement will terminate automatically if you breach any of its terms or conditions or any of the terms or conditions of any other agreement between you and Jive Licensed Products. Upon termination, you shall immediately destroy the original and all copies of the Licensed Products and any accompanying documentation, or return them to Jive Licensed Products and you shall retain no further rights in or to the Licensed Products.
K. Licensed Products Suggestions
Jive Software welcomes suggestions for enhancing the Licensed Products and any accompanying documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Jive Software's business. You acknowledge that all title, ownership rights, and intellectual property rights concerning such suggestions shall become the exclusive property of Jive Software and may be used for its business purposes in its sole discretion without any payment or accounting to you and you hereby assign all such rights to Jive Software irrevocably.
Miscellaneous
This Agreement constitutes the entire agreement between the parties concerning the Licensed Products, and may be amended only by a writing signed by both parties that expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, excluding its conflict of law provisions. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of Multnomah County, Oregon and you expressly consent to the exercise of personal jurisdiction in the courts of Multnomah County, Oregon in connection with any such dispute. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. You will indemnify Jive Software for any breach of the terms or conditions of this Agreement.