Terms & Conditions for Cloud Free Trial
Revised: May 27, 2020
These Terms and Conditions are a legally binding agreement (the "Terms" or “Agreement”) by You (and/or the company You represent) and shall govern Your use of the Jahia Cloud Free Trial for a limited period of time.
Jahia Solutions Groups SA and its subsidiaries (collectively, "Jahia," "we," "us," "our") provide access to our hosted software-as-a-service and Platform (defined herein) for a limited period of time, subject to the terms and conditions set forth in this Agreement (the "Cloud Free Trial" or the "Services").
Please carefully read and understand these Terms. These Terms are important because they:
Outline Your legal rights when using the Services;
Explain the rights You give to us when You use the Services;
Describe the rules everyone needs to follow when using the Services; and
Contain a class action waiver and an agreement to resolve any dispute that may arise by arbitration.
By accepting this Agreement, when You click accept this Agreement, or when You access or use the Services, or authorize or permit anyone else to access or use the Services, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Jahia that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “You,” “Your” or a related term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use the Services.
This Agreement, or any part thereof, may be modified by us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Services after such posting shall be deemed to constitute acceptance by You of such modifications, additions or deletions.
1. THE SERVICES
1.1 Thirty-Day Free Trial Use. We will provide You with access to the Services and our Platform subject to this Agreement. You will have a nonexclusive, non-transferrable, non-sublicensable, limited license for thirty (30) days (the "Free Trial Period") to: (i) access the Services through the User IDs; (ii) load Your Data into the Services; (iii) install, operate and use the Services only for Your own internal business purposes during the Free Trial Period. All rights not expressly granted to You herein are reserved to Jahia and its licensors.
1.2 Limitations on Use. You shall use the Services only for Non-Production Use. We will not back up Your Data as part of the Services or provide any support to You while using the Cloud Free Trial.
You shall not access, or allow access to, the Services or the Platform if You are in direct competition with Jahia, except with Jahia's prior written consent. In addition, You shall not, and shall not permit others to:
(a) copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Services;
(b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available, commercially exploit, or make available the Services to any third party in any way;
(c) reverse engineer, disassemble, decompile, decode, or adapt the Services, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
(d) create Internet “links” to the Services on any other server or wireless or Internet-based device;
(e) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to the Services or Documentation;
(f) use the Services or the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable laws;
(g) use the Services for purposes of: (i) benchmarking or competitive analysis of the Services; (ii) developing, using, or providing a competing software product or service; or (iii) building a product using similar ideas, features, functions, or graphics of the Services; or (iv) any other purpose that is to Jahia’s detriment or commercial disadvantage;
(h) use the Services or Platform in the planning, design, construction, maintenance, control, or direct operation of nuclear facilities, aircraft navigation, control or communication systems, chemical or biological weapons, missile projects, or weapons systems, unless specifically authorized by the U.S. government or the appropriate European body for such purposes;
(i) use the Services or Platform in or in connection with the design, construction, maintenance, operation, or use of any life-support systems, hazardous environments, safety response systems, other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage;
(j) use the Services, Platform, or Documentation in any manner or for any purpose or application not expressly permitted by this Agreement; or
(k) use any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.
3. SUSPENSION AND TERMINATION
We may suspend or terminate the Cloud Free Trial without liability at any time at our sole discretion. We may provide You with prior notification of any such suspension but You acknowledge that we are not required to do so. We may suspend Your use of the Services immediately if You violate this Agreement. Upon termination, You will no longer have access to the Services and Jahia will delete any of Your Data residing in the Services environment.
4. ACCEPTABLE USE REQUIREMENTS FOR SERVICES
4.1 User IDs. User IDs shall be required to access and use the Services and You will access and use the Services only through the User IDs. You shall be responsible for issuing User IDs to the particular employees as it determines, in accordance with this Agreement. You shall not issue User IDs to contractors or agents unless (a) those contractors and agents are bound by written agreements protecting the confidentiality and Intellectual Property Rights of Jahia at least as strongly as this Agreement, (b) those contractors and agents are instructed in writing that they may not access or use the Services except on Your behalf for Your internal business purposes, (c) those contractors and agents are not competitors of Jahia, and (d) You agree to be responsible for, and to indemnify and hold Jahia harmless from, any and all costs or damages which result to Jahia from any act or omission of such contractor or agent. You shall not permit Users to share User IDs with each other or with third parties. You acknowledge that: (i) Jahia shall rely on the validity of any User ID, instruction or information that meets the Services' automated criteria or which is believed by Jahia to be genuine; (ii) Jahia may assume a person entering a User ID and password is, in fact, that User; and (iii) Jahia may assume the latest email addresses and registration information for Users on file with Jahia (if any) are accurate and current.
4.2 Appropriate Use. In using the Services, You shall: (i) not send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) not send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) not send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) not interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) not attempt to gain unauthorized access to the Services or its related systems or networks; (vi) not input any data or information into the Services that is credit card or debit card information, personal banking, financial account information, social security numbers, HIPAA-protected data, or other personally identifiable or confidential information concerning individuals; (vii) not use or access the Services in order to monitor the availability, performance, or functionality of the Services or any portion thereof or for any similar benchmarking purposes; (viii) not engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner the servers, security, networks, data, applications or other properties or services of Jahia's cloud environment, or that of any third party; (ix) not circumvent technological measures intended to prevent direct access to the databases and/or Software in Services or manufacture tools or products to that effect; (x) not bypass any restrictions for any reason, including automating administrative functions provided through the Services; and (xi) only use the Services for Non-Production Use.
5. YOUR RESPONSIBILITIES
5.1 Your Data. You shall have the sole responsibility for the accuracy, quality, integrity and legality of Your Data, including obtaining all rights and consents necessary to share Your Data with Jahia as set forth in this Agreement. You shall be responsible for maintaining sufficient back-ups and/or tangible copies of Your Data to allow for reasonable reconstruction of Your Data.
5.2 Connectivity. You shall be responsible for Your own Internet connection and Jahia cannot be held liable for malfunctions and difficulties in accessing and/or using the Services due to disruption of the Internet.
5.3 Capacity Metrics. You agree to not place excessive burdens on Services or the Jahia cloud infrastructure. You understand that any bandwidth, connection speeds, and other similar indices of capacity prescribed by Jahia are maximum numbers. You will not perform any load tests or vulnerability tests on websites hosted on the Cloud Free Trial.
5.6 Access to Services and Your Data. You must use reasonable security precautions in connection with Your use of the Services and for Your Data. You are responsible for maintaining the security of access to the Services and Your Data through Your Free Trial, (including all activities that occur under User IDs). You agree to immediately notify Jahia of any unauthorized use of Services or any other breaches of security of which You become aware.
5.7 Your Representations and Warranties. You represent and warrant that: (i) You own Your Data and Your Applications or have all necessary rights to use and input Your Data into the Services; (ii) Your Data and/or You Applications will not infringe upon any third-party Intellectual Property Rights, violate any privacy rights or be defamatory to any third party; and (iii) You will provide all necessary notifications and obtain any necessary consent from any data subjects in accordance with the applicable laws and regulations relating to such Personal Data and to the processing by Jahia and You of Your Data via the Services. Jahia is not and shall not be liable for Your Data.
5.8 Your Indemnification. You agree to defend, indemnify, and hold harmless Jahia, its affiliates, officers, directors, agents, partners and employees, from and against any and all claims, demands, damages, losses, liabilities, awards and/or expenses (including reasonable attorneys' fees and costs) suffered and/or incurred or agreed to be paid out by Jahia in connection with, or arising out of (i) use of the Services by You or Users in breach of this Agreement; and/or (ii) Your Data or other content posted, uploaded, distributed, transmitted or disseminated by You or Users; and/or (iii) infringement of third-party Intellectual Property Rights by Your use of Services and/or Your Data; (iv) Your gross negligence or willful misconduct; or (v) violation of law or violation of any rights of another.
5.9 Limited License. Notwithstanding anything to the contrary contained herein, You hereby grant to Jahia an irrevocable, fully paid up, worldwide, royalty free, non-exclusive, transferable, sublicensable license to use Your Data to: (i) provide the Services to You; (ii) use Your Data in anonymized and/or aggregate form for Jahia’s internal purposes to improve the Services, and related services, and any other uses disclosed in or related to performance under this Agreement.
6. CONFIDENTIAL INFORMATION
6.1 Each of us agrees not to use the other’s Confidential Information except as provided below. We may use Your registration information to contact You for marketing purposes. For purposes of this Section, a Party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”
6.2 “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include the terms and conditions and pricing information of this Agreement, and the Provider's Hosted Services (including, without limitation, Documentation, source code, translations, compilations, implementation methodologies, partial copies, and derivative works). Confidential Information does not include that which was: (i) as of the Effective Date of this Agreement, generally known to the public without breach of this Agreement; (ii) is or became generally known to the public after the date of this Agreement other than as a result of the act or omission of Recipient or Recipient's Affiliates; (iii) was already in the possession of the Recipient without any obligation of confidence; (iv) released by Disclosing Party with its written consent to third parties without restriction on use and disclosure; (v) lawfully received by Recipient from a third party without an obligation of confidence; or (vi) independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information; or (vii) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Recipient provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the applicable information.
6.3 Non-Disclosure. Recipient shall do the following: (i) use at least the same degree of care that it uses with respect to its own confidential information, but in no event less than a reasonable degree of care to avoid disclosure, publication or dissemination of the other Party's Confidential Information; (ii) disclose Confidential Information only to its personnel who have a need to know; (iii) disclose Confidential Information only to third parties who have entered into an appropriate confidential disclosure agreement with the Recipient, prior to any disclosure of Confidential Information, and to whom such disclosure has been previously authorized in writing by the Disclosing Party; and (iv) promptly report any loss of any Confidential Information to the Disclosing Party.
6.4 Return of Confidential Information. Upon the written request of the Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession or control and cease all further use thereof.
6.5 Injunctive Relief. Recipient acknowledges that violation of the provisions of this Confidentiality Section would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
7. RESERVATION OF RIGHTS AND JAHIA OWNERSHIP
Jahia (and its licensors) own and shall own all right, title and interest in and to the Services and underlying software, the Platform, its Confidential Information, copies, updates, upgrades, Versions, modifications, improvements, and derivative works thereof and Intellectual Property Rights therein. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Services, the underlying software, Third-party Services, or to the respective Intellectual Property Rights therein. Jahia's name, Jahia's logo, and the product names associated with the Services are trademarks of Jahia or third party licensors, and no right or license is granted to use them. Jahia shall own any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or any other party relating to the Services, including all contextual data regarding Your use of the Services and including all related Intellectual Property Rights thereto, specifically excluding Your Data. Third-party Software/Services shall be subject to any Third-party terms and conditions.
8. WARRANTY DISCLAIMER
8.1 The Services have limited availability and are being provided without warranty of any kind. We provide no assistance with migrating data onto or from the Cloud Free Trial. We disclaim all warranties of every kind, whether express or implied, statutory or otherwise, and Jahia hereby disclaims all implied warranties and conditions, including, but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement. We do not promise that (i) the use of the Services will be uninterrupted, error-free or completely secure, or (ii) the Services will meet Your requirements or expectations.
8.2 THE SERVICES AND UNDERLYING SOFTWARE ARE PROVIDED BY JAHIA "AS IS" AND "AS AVAILABLE." TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, JAHIA DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES AND UNDERLYING SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, COMPLETELY SECURE, COMPLY WITH REGULATORY REQUIREMENTS, OR MEET Your REQUIREMENTS OR EXPECTATIONS. JAHIA EXCLUDES ALL TERMS, CONDITIONS, REPRESENTATIONS AND WARRANTIES OF ANY KIND, (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND THE LEVEL OF SKILL AND CARE TO BE APPLIED BY JAHIA AND ANY OF ITS PERSONNEL), WHETHER ARISING BY STATUTE, EQUITY, COMMON LAW, COURSE OF TRADE OR DEALING OR OTHERWISE. CLIENT ACKNOWLEDGES THAT IT IS DEALING WITH JAHIA AS A BUSINESS AND NOT AS A CONSUMER.
9. LIMITATION OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL JAHIA OR ITS AFFILIATES BE LIABLE TO CLIENT OR ITS AFFILIATES FOR ANY, AND YOU WAIVE ALL RIGHTS TO ANY, INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE THEORY, STATUTORY DUTY OR OTHERWISE. IN ANY EVENT, JAHIA'S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STATUTORY, OR OTHERWISE) WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED $25.
9.2 JAHIA IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT OR SOFTWARE PROVIDED BY YOU, OR ANY THIRD PARTY, EVEN IF ACCESSED THROUGH OR PROVIDED WITH SOFTWARE AND/OR SERVICES.
10. COMPLIANCE WITH LAWS
You shall comply with all applicable laws, regulations, rules and codes with respect to Your use of the Services, including without limitation where applicable, the European E-Commerce Directive 2000/31/EC, E-Privacy Directive 2002/58/EC and Consumer Rights Directive 2011/83/EC (including the distance selling rules); the Health Insurance Portability and Accountability Act (HIPAA), and the Health Information Technology for Economic and Clinical Health Act (HITECH Act); Gramm-Leach-Bliley Act (GLBA); the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM); the Family Rights and Privacy Act (FERPA); and the Children's Online Privacy Protection Act (COPPA). You represent and warrant that You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Jahia is legally prohibited to provide the Services. You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside.
11. GOVERNING LAW AND ARBITRATION
11.1 Laws/Jurisdiction. The construction and performance of this Agreement shall be governed by the substantive laws of the United States and the laws of the State of Delaware without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
11.3 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. More than one person’s claims may not be consolidated under any circumstances in any form of any class or representative proceeding or otherwise. You expressly submit to the exclusive jurisdiction of said courts and consent to extraterritorial service of process.
"Affiliates" means any entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with a specified entity, and for purposes of this definition, “Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”), means the direct or indirect beneficial ownership of at least fifty (50%) percent of the voting stock of, or at least a fifty (50%) percent interest in the income of, such corporation or entity, or the power to elect at least fifty (50%) percent of the directors or trustees of such corporation or entity, or majority control of such corporation or entity, or such other relationship which in fact constitutes actual control.
“Intellectual Property Rights” means worldwide all: (i) patents and patent applications, and rights associated therewith; (ii) copyrights and mask work rights; (iii) know-how and rights relating to the protection of trade secrets, data privacy rights, rights in design, and confidential information; (iv) sui generis database rights; (v) any rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (vi) trademarks, service marks, trade dress, and trade names (including internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (vii) all other forms of intellectual property or proprietary rights, and modifications, improvements and derivative works thereof; in each case above whether arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
"Jahia Data" means any and all data, databases, records, files, images, graphics, audio, video, photographs, forms, and other information, content, and materials, which Jahia and/or its Affiliates provide in connection with the Services, excluding Your Data (defined herein).
"Non-Production Use" means use of the Services and/or Platform for internal evaluation or testing and not for any commercial use.
"Open Source Components" means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
"Platform" means Jahia's infrastructure for its cloud services to support its Services and underlying software, including without limitation its servers, data centers, operating systems, management systems and other applications.
"Third-party Services" means services, software-as-a-service, or Open Source Components that may be accessible through the Jahia Services and not directly operated by Jahia.
"User" means Your employee(s), officers, directors, managers, contractors or agents who are authorized by You to use the Services in accordance with this Agreement and who have appropriate access credentials, if required by Jahia.
“User ID” means the access credentials in the form of a user name, identification number, password, security key, token, PIN, or other security code, method, or device used, alone or in combination to verify an individual’s identity and authorization to access and use the Services.
“Your Data” means any and all data, databases, records, files, images, graphics, audio, video, photographs, forms, and other information, content, and materials, which You enter into, load onto, or use in connection with the Services, excluding Jahia Data (defined herein).
You may not assign this Agreement to another party. If any part of this Agreement is found unenforceable by a court, the rest of this Agreement will nonetheless continue in
effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business objectives of the parties underlying this Agreement. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. These Terms are the only agreement between You and Jahia regarding the Cloud Free Trial. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. The following Sections shall survive termination of this Agreement: 1.2, 2, 3, 4, 5, 6, 7, 8, 9, 10.1, and 11.