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JASE Marketing Manager Software Licensing Agreement

Last updated: July 2010
These JASE Marketing Manager Service Agreement Terms and Conditions set forth an agreement by and between JASE Group, LLC ("JASE"), a Virginia corporation, with offices at 614 Georgia Avenue, Norfolk, VA 23508, and the person or entity identified in a JASE online Order Form ("Customer"). By entering into a JASE Order Form, which identifies the products and services that Customer is purchasing, Customer agrees to these JASE Marketing Manager Service Agreement Terms and Conditions, which upon acceptance of the Order Form by JASE, together constitute an agreement between JASE and Customer (collectively, this "Agreement"). If an individual enters into an Order Form on behalf of a company or other legal entity, then such individual hereby represents and warrant that he/she has the authority to bind such entity to this Agreement.
1. Service: JASE hereby grants Customer, subject to Customer's ongoing compliance with all of the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicenseable right and license to access and use the JASE Marketing Manager Web-based service ("Service") for its internal business purposes only. Customer shall have no right to access or use the Service if it is a direct competitor of JASE, except with JASE's prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. The Service is offered in three editions: Person, Small Business and Enterprise. Information concerning these editions of the Service may be found at http://jasemarketing.com.
2. Customer Support: Customer support is provided Monday through Friday, 8AM to 6PM Eastern Time, excluding holidays via the CONTACT JMM online contact form only.
3. Term: The term of this Agreement begins on the 1st day of the following calendar month following Agreement execution outlined in the first paragraph of this Agreement and remains in effect for the "Term" of 12 calendar months, unless terminated in accordance with this Section 3 or Section 4 below. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term. Collectively the Initial Term and all renewal terms shall be referred to herein as the "Term".
4. Suspension and Termination: In the event JASE has reason to believe Customer's use of the Service is fraudulent, unauthorized or may adversely impact the operation of the Service, JASE may initiate an investigation and, upon notice to Customer, JASE may suspend Customer's right and license to use the Service while such an investigation is being conducted. Customer shall cooperate with and assist JASE and in its investigation of any suspected fraudulent or otherwise unauthorized use of the Service. JASE will notify Customer of the results of its investigation and JASE, in addition to all other available remedies, shall have the right to terminate this Agreement for cause if Customer has engaged in any fraudulent or unauthorized use of the Service, as determined by JASE in its sole discretion. In addition, JASE may suspend Customer's right and license to use the Service or terminate this Agreement in its entirety for cause immediately in the event (i) Customer commits a breach of any of the provisions of this Agreement and such breach has not been fully cured within thirty (15) days of notice of such breach, (ii) Customer is in default of any of its payment obligations and such default is not fully cured within five (5) days following notice of such default, (iii) provision of the Service (or any portion thereof) to Customer is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason, as determined by JASE in its sole discretion, or (iv) subject to applicable law, of Customer's liquidation, commencement of dissolution proceedings, disposal of Customer's assets, failure to continue Customer's business, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding. In addition, JASE may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that JASE has no obligation to retain Customer Data (defined below), and may delete such Customer Data following termination of this Agreement. Notwithstanding anything in this Agreement, JASE shall have no liability for any damages, liabilities or losses (including, without limitation, loss of data or lost profits) that may result from JASE's deletion of any Customer Data. Upon suspension by JASE of Customer's use of the Service, in whole or in part, for any reason, (a) Monthly Fees will continue to accrue for any portion of the Service that remains accessible by Customer, notwithstanding the suspension, (b) Customer shall remain liable for all fees, charges and any other obligations Customer has incurred through the date of suspension with respect to the Service, and (c) all of Customer's rights with respect to the Service shall be terminated during the period of the suspension.
5. Effect of Termination: Upon termination of this Agreement for any reason (i) Customer shall remain liable for all fees, charges and any other obligations it has incurred under this Agreement through the effective date of termination, and (ii) all of Customer's rights under this Agreement shall immediately terminate and revert to JASE. Each party's rights and obligations under Sections 7, 10, 15, 17-20, 22, 24 and 26-32 will survive any termination of this Agreement.
6. User Licenses: Customer is permitted to use the Service only by the number of unique users specified in the Order Form ("Users" or "User Licenses"). User Licenses are for named Users only and cannot be shared or used by more than one User, but initially named Users may be replaced by, and assigned to, new Users from time to time by Customer providing notification thereof to JASE. Either party may reduce the number of User Licenses, effective only upon the expiration of the Initial Term or the then-current renewal term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the Initial Term or such renewal term. If Customer requires more than 50 User Licenses, JASE reserves the right to require Customer to upgrade, subject to the applicable Monthly License Fee, from the Small Business to the Enterprise edition of the Service.
7. Fees: Customer agrees to pay JASE on the Effective Date the one-time Setup Fee specified on the Order Form website for account creation and other administrative tasks. In addition, Customer agrees to pay JASE on a monthly basis the recurring charge amounts set forth in the Pricing Schedule corresponding to the product specified on the Order Form ("Monthly Fee") website. On each anniversary date of the Effective Date, the recurring charge specified in the Pricing Schedule shall increase automatically, without notice, by three percent (3%) of the then-current rate, unless otherwise agreed by the parties in writing. Customer agrees to pay JASE all Setup Fees and the first Monthly Fee starting on the Effective Date and, thereafter, all Monthly Fees shall be due and payable in advance on the first day of each month during the Term. If the Effective Date is a day other than the first day of a month, then the amount of the Monthly Fee for the first month will be pro-rated. Customer may add additional User Licenses during the Term by executing an additional Order Form. User Licenses added by Customer during the Term will remain in effect for the remainder of the Term and cannot be terminated or removed by Customer before the end of the Term. If additional Users are added on a day other than the first day of a month, Customer will be charged a pro-rated amount of the Monthly Fee for such additional Users for the first month. All payment obligations are non-cancelable and all amounts paid are non-refundable. Customer is responsible for paying for all User Licenses ordered for the entire Term, whether or not such User Licenses are used. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, Customer shall notify JASE in writing and shall pay such additional amounts as necessary to ensure that the net amount paid to JASE, after such deduction and withholding, equals the amount JASE would have received if no such deduction or withholding had been required. Additionally, Customer shall provide JASE with supporting documentation evidencing Customer's payment of the withholding and deducted amounts to the relevant taxing authority.
8. Customizations: Upon request, JASE shall provide Customer with custom software development services designated in writing by both parties in an Order Form. All customizations of the Service, including lead source integrations not included in the Service, will be billed at JASE's then-current hourly rates, plus all applicable Monthly Fees.
9. Availability:
9a. Formula: The availability of the Service for a given month during the Term will be calculated according to the following formula ("Availability"): Availability = (1 - (TMU/TMM)) x 100. TMM = Total minutes in the month. TMU = Total minutes in month Service is unavailable. For purposes of this calculation, the Service will be deemed to be "Unavailable" if, based upon availability of monitoring of the JASE benchmark transaction, it does not respond to a request issued by JASE's monitoring process. Further, the Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth in Section 9b below. JASE's records and data will be the sole basis for all Availability calculations and determinations. Customer may audit JASE's records and data, upon not less than ten (10) days’ prior written notice, for the sole purpose of verifying the accuracy of Availability calculations and determinations.
9b. Exceptions: The Service will not be deemed to be Unavailable for any outage that results from any maintenance performed by JASE (i) of which Customer is notified at least 24 hours in advance; (ii) during JASE's then-current standard maintenance windows (collectively referred to herein as "Scheduled Maintenance"); or (iii) as a result of Customer's request outside of Scheduled Maintenance. The JASE network extends to, includes and terminates at the data center located router that provides the outside interface of each of JASE's WAN connections to its backbone providers (referred to herein as the "JASE Network"). In addition, the Service will not be deemed to be Unavailable for any outage of the Service due to (a) Customer's information content or application programming or software, acts or omissions of Customer or its agents, failures of equipment, software, technology or facilities provided by Customer or any third party, or network unavailability outside of the JASE Network; (b) issues arising from bugs or other problems in the software, firmware or hardware of JASE's suppliers; (c) delays or failures due to circumstances beyond JASE's reasonable control that could not be avoided by its exercise of reasonable care; (d) any outage or downtime outside of the JASE Network; or (e) suspension or termination by JASE of Customer's right to access the Service.
9c. Remedies: If the Availability of the Service in a given month during the Term is less than 98% ("Availability Commitment"), then, except as otherwise provided below, Customer will receive one (1) Service Credit, one (1) additional Service Credit if Availability Commitment is not met by 100 minutes or more and one (1) additional Service Credit for each additional 100-minute increment by which the Availability Commitment is not met. A "Service Credit" will be deemed to be an amount equal to 1/30th of the Monthly Fee for the Service that is affected. The total number of Service Credits that Customer will be entitled to receive for any given month will, in no event, exceed the number corresponding to 50% of the then-current Monthly Fee for the affected Service. Service Credits will be recognized for billing purposes in the month following the month in which the Availability giving rise to such Service Credits occurred. All Service Credits will be calculated based upon a 30-day month. This Section 9c sets forth JASE's sole and entire liability to Customer, and Customer's sole remedy, for the Service being Unavailable. In the event Customer is not current in its payment obligations when the Service is Unavailable, remedies will accrue, but Customer shall not be entitled to receive Service Credits until Customer has paid its payment obligations. To receive Service Credits, Customer must submit a written request or notify the JASE Customer Service Manager responsible for Customer's account within 30 days following the last day of the month in which the Availability Commitment was not met. Otherwise, Customer will be deemed to have waived its right to receive Service Credits with respect to the Availability Commitment not being met for such month.
10. Taxes: Unless otherwise stated, fees do not include any local, state, federal or foreign taxes, including VAT, levies or duties of any nature associated with the Service (“Taxes”). Customer is responsible for paying all applicable Taxes, excluding only taxes based on JASE's income.
11. Use Restrictions: Customer agrees to use the Service solely for its internal business purposes as contemplated by this Agreement and further agrees that it will not, nor allow any third party to: (i) license, sublicense, sell, disclose, lend, transfer, convey, resell, rent, lease, assign, distribute, timeshare or otherwise commercially exploit or make the Service available to any third party, other than as expressly set forth in this Agreement; (ii) send spam or duplicative or unsolicited messages in violation of applicable law or regulations; (iii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material including, without limitation, material that infringes or violates any third party’s intellectual property, publicity or privacy rights; (iv) send or store material containing viruses, worms, Trojan horses or harmful computer codes, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service, the JASE Network or the data contained therein; or (vi) attempt to gain unauthorized access to the Service, the JASE Network or its related systems or networks. Customer shall not (a) modify, alter, tamper with, copy or create derivative works based on the Service or JASE Technology or any software included within the Service;(b) create internet “links” to or from the Service, or “frame” or “mirror” any content forming any part of the Service other than on Customer’s own intranets or otherwise for its own internal business purposes; or (c) disassemble, reverse engineer or decompile the Service or the JASE Technology or otherwise attempt to derive the source code of any software included within the Service for any purpose or reason.
12. JASE Responsibilities: JASE agrees to use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (i) Scheduled Maintenance or planned downtime (which JASE shall schedule to the extent reasonably practicable during evening and weekend hours); or (ii) downtime caused by circumstances beyond JASE's reasonable control including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, war, acts of terrorism, strikes or other material labor problems, computer or telecommunications failures or delays involving hardware or software not within JASE's possession or reasonable control, and network intrusions or denial of Service attacks. JASE agrees to use commercially reasonable efforts to keep data and other information stored by Customer in JASE's database secure; provided, however, that JASE shall not be responsible for any data loss or theft due to the failure or any security measure.
13. Customer Responsibilities: Customer is responsible, and JASE shall not have any responsibility, for all activities of Customer's Users or that occur using the security credentials for accessing under Customer's Users' accounts. Without limiting the generality of the foregoing, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service (including, without limitation, causing all Users to change temporary passwords issued by JASE for accessing the Service), and Customer shall notify JASE promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal and foreign laws and regulations in using the Service.
14. Third Party Services: If indicated in an Order Form, JASE will provide Customer access to certain features, services or technology licensed by one or more third parties ("Third Party Services"). JASE hereby grants Customer a limited, non-exclusive, non-transferable, revocable, non-sublicenseable right and license to access and use Third Party Services, solely in conjunction with the Service for the purpose specified in this Section 14, and solely in accordance with the terms and conditions of this Agreement. By providing Third Party Services as a part of the Service, JASE does not guarantee the continued availability of such Third Party Services and JASE may terminate Customer's access to any of the Third Party Services for any reason whatsoever immediately upon written notice. In no event will Customer be liable for the operation of, the failure to operate or unavailability of any Third Party Services.
14a. The following terms and conditions apply to Third Party Services providing telephony services: i. Customer's access and use of such Third Party Services shall be limited to telephony purposes. ii. Customer acknowledges and understands that the Third Party Services do NOT allow Customer to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Third Party Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone that may be used to contact emergency services. iii. THE THIRD PARTY SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. "EMERGENCY SERVICES" SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS SUCH AS 911 OR E911 SERVICES. NEITHER JASE NOR ITS LICENSORS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES OR AFFILIATES, MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO CUSTOMER'S INABILITY TO USE THE SERVICE OR ANY THIRD PARTY SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR CUSTOMER'S FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
14b. The following terms and conditions apply to Third Party Services providing mortgage pricing: i. Customer's access and use of such Third Party Services shall be limited to mortgage loan transactions. ii. Customer shall be solely responsible for the verification and integrity of its own and all of the investors' program guidelines and pricing data entered into such Third Party Services. The Third Party Services and all data generated by Third Party Services are provided "AS IS" without warranty of any kind. Neither JASE nor its licensors shall be responsible or liable for any errors, omissions, delays or losses resulting from any use of the Third Party Services or any data input by Customer or JASE on behalf of Customer.
15. Proprietary Rights to Service and Data:
15a. In providing the Service, JASE utilizes (i) certain audio and visual information, documents, software and other works of authorship and (ii) other technology, software, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material and information used or provided by JASE in providing the Service (collectively "JASE Technology"), which are covered by intellectual property rights, as between the parties, owned by or licensed to JASE (collectively "JASE IP Rights"). Other than as is expressly set forth in this Agreement, no license or other rights in or to the JASE Technology or the JASE IP Rights are granted to Customer, and all other rights are expressly reserved by JASE. Customer grants to JASE a non-exclusive, royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information ("Feedback") provided by Customer or its Users and to reproduce, distribute, modify create derivative works of, publicly perform, publicly display and sublicense such Feedback in connection with the operation of the Service. With respect to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users, Customer represents and warrants that such Feedback , in whole or in part, (a) is legally distributable by Customer, either because Customer owns the copyright or because Customer has fully complied with any copyright terms associated with the software or content, (b) contains no third party software and (c) does not violate, misappropriate or infringe any intellectual property rights of any third party.
15b. All data generated by the use of the Service, including lead source data, data contained in files uploaded to the Service by Customer, and data contained in Service generated documents such as PDF attachments (collectively "Customer Data"), shall remain the sole and exclusive property of Customer and its licensees. JASE may make such Customer Data non-personally identifiable by either combining it with information about other leads or transactions (aggregating the Customer Data with information about other customers and leads), or removing characteristics (e.g., lead name) that make the information personally identifiable to Customer, in either case, as de-personalized Customer Data. Customer hereby grants to JASE a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use (i) Customer Data (including, without limitation, personally identifiable information that may be contained therein) in connection with JASE's operation of the Service and performance of its obligations under this Agreement, and (ii) de-personalized Customer Data to create and develop analytical and statistical analysis relating to the use of the Customer Data ("JASE Analytical Data"). Customer hereby authorizes JASE to make any commercial use of the JASE Analytical Data including, without limitation, sharing such JASE Analytical Data with third parties; provided that JASE does not sell, trade, or otherwise transfer outside of JASE any Customer Data that personally identifies any third party sales lead. Further, JASE may use Customer's name to identify Customer as a customer of JASE on JASE's website and in a list of JASE's customers for use and reference in JASE's corporate, advertising, promotional and marketing materials. In addition, JASE may issue press releases identifying Customer as a customer of JASE and describing Customer's use of the Service and the benefits that Customer expects to receive from its use of the Service.
16. Service Enhancements: From time to time JASE may, in its sole discretion, make available or issue releases of the Service intended to correct problems with the software, such as fixes, patches, workarounds and enhancements ("Updates"), which shall be provided to Customer during the Term at no additional charge as JASE makes such Updates generally available to its customers, provided that Customer is in full compliance with the terms of this Agreement including, without limitation, its payment obligations. Updates provided to Customer shall constitute a part of the Service and shall be subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, Customer shall not be entitled to receive without charge any new version upgrade to the Service expressed in a whole number version change.
17. Confidentiality:
17a. Confidential Information: As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, without limitation, business and marketing plans, technology and technical information, product designs and business processes. Without limiting the generality of the foregoing, the terms of this Agreement, the Service and the JASE Technology shall be deemed to be JASE's Confidential Information. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party without confidentiality obligations prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received without restrictions on use or disclosure from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to a third party, other than its employees or consultants who have a need to know such information in connection with the Receiving Party's performance hereunder, or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
17b. Mandatory Legal Disclosure: A Receiving Party may disclose Confidential Information to the extent required by any applicable law, regulation or court; provided however, that the Receiving Party will (to the extent it is not prohibited from doing so) notify the Disclosing Party in writing, promptly after becoming aware of its obligations to make such a disclosure and will permit the Disclosing Party to seek to challenge or limit such required disclosure. Further, each party may disclose Confidential Information of the other party for the limited purpose of enforcing its rights under this Agreement before a court of competent jurisdiction, provided that such disclosure is accomplished in such a manner so as to protect the rights of the parties to this Agreement to the maximum extent reasonably possible.
17c. Remedies: If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 17, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such breach is likely to result in irreparable harm to the Disclosing Party for which legal remedies are inadequate.
18. Warranty and Disclaimer: THE SERVICE, THE JASE TECHNOLOGY AND THIRD PARTY SERVICES ARE PROVIDED "AS IS." CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ITS USE OF THE SERVICE. JASE AND ITS LICENSORS DO NOT WARRANT THE SERVICE OR THIRD PARTY SERVICES WILL BE ERROR FREE, WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR THE PERFORMANCE OR THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICE OR THIRD PARTY SERVICES. JASE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JASE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. JASE AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR THIRD PARTY SERVICES WILL BE UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA STORED WITHIN THE SERVICE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WITH THE EXCEPTION OF THE AVAILABIILTY COMMITMENT SET FORTH IN SECTION 9a, JASE AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS.
19. Limitation of Liability: NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER JASE, INCUDING ITS AFFILIATES AND ASSIGNS, NOR ITS LICENSORS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. JASE'S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT, IN ANY CASE, EXCEED THE TOTAL CHARGES PAID BY CUSTOMER TO JASE HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. SOME JURISDICTIONS PROHIBIT LIMITING LIABILITIES, SO IN CERTAIN JURISDICTIONS THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
20. Indemnification:
20a. Customer agrees to defend, indemnify and hold JASE, its affiliates, licensors and business partners, and its and their respective officers, directors, employees, agents and representatives, harmless against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) incurred in connection with claims, demands, suits or proceedings ("Claims") made or brought against JASE by a third party relating to or arising out of (i) Customer's use of the Service and/or any Third Party Services in a manner not authorized by this Agreement; (ii) Customer Data or the use of Customer Data; or (iii) Customer's violation of any of the terms and conditions of this Agreement; provided, that JASE (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases JASE of all liability); and (c) provides to Customer at Customer's cost all reasonable assistance.
20b. JASE agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and representatives harmless from and against (i) any claims for bodily injury or tangible and/or real property damages to the extent such injury or such damage arises from or is related to the acts or omissions of JASE personnel, (ii) any claim, demand, suit or allegation, that the Service, or business method or delivery channel used by JASE violates or infringes the U.S. intellectual property right of a third party, including, but not limited to, infringing a copyright, trademark, or patent; violating a right of privacy, attribution or withdrawal; or constituting the misappropriation of a trade secret, or (iii) JASE's breach of this Agreement or any of the representations or warranties contained herein; provided, that Customer (a) promptly gives written notice of the claim to JASE; (b) gives JASE sole control of the defense and settlement of the claim (provided that JASE may not settle or defend any claim unless it unconditionally releases Customer of all liability); and (c) provides to JASE at JASE's cost all reasonable assistance. Notwithstanding the foregoing, in no event shall JASE have any obligation or liability under this Section 20b arising from (1) Customer's use of the Service in a modified form or in combination with materials (including, without limitation, Customer Data) not furnished by JASE or (2) where the Service would not without combination with materials not furnished by JASE give rise to any such third party claim. If, in JASE's reasonable determination, the Service is likely to become the subject of an injunction preventing its use as contemplated by this Agreement, JASE may, at its option and at its expense: (x) procure the right for Customer to continue using the Service, (y) replace or modify the Service so that it becomes noninfringing, or, if the actions stated in foregoing clauses (x) and (y) are not reasonably practicable, then (z) terminate Customer's license hereunder with respect to the allegedly infringing portion of the Service. THIS SECTION 20b STATES JASE'S ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIM OF INFRINGEMENT AS SET FORTH ABOVE AND ALL THIRD PARTY CLAIMS GENERALLY. IN NO EVENT SHALL JASE'S AGGREGATE LIABILITY TO CUSTOMER FOR INDEMNIFICATION OBLIGATIONS WITH RESPECT TO ANY THIRD PARTY CLAIM HEREUNDER EXCEED AN AMOUNT EQUAL TO AMOUNTS IN AGGREGATE PAID TO JASE BY CUSTOMER HEREUNDER PRIOR TO THE DATE OF THE CLAIM GIVING RISE TO SUCH INDEMNIFCATION OBLIGATIONS.
21. Public Disclosure: Customer agrees not to issue any statements, confirm, or otherwise disclose to any third party the terms or existence of this Agreement or any business relationship with JASE without JASE's prior written consent or except as required by applicable law. Customer shall not use the name, service marks or trademarks of JASE or its affiliates without JASE's prior written consent.
22. Disputes: Any disputes relating to amounts stated in a JASE invoice must be described in writing and submitted to JASE by Customer within thirty (30) days following the date of such invoice. Customer shall not be entitled to any refund or credit relating to any dispute about which JASE is first notified after such thirty (30)-day period. Customer must identify the specific charges that are being disputed and submit detailed data and information in support of the dispute. The written notice of dispute must be signed by an officer of Customer and include a statement warranting the dispute and accompanying detail is accurate to the best knowledge and belief of Customer and the officer submitting it. A billing dispute does not relieve Customer from paying its invoices in accordance with the terms of this Agreement. Should Customer dispute a portion of its invoice, Customer shall pay all undisputed amounts in accordance with this Agreement.
23. Failure to Pay: In the event Customer fails to pay amounts due and payable hereunder, Customer agrees to pay all costs incurred by JASE in connection with its collection of delinquent payments, including attorney's fees and court costs. As security for Customer's payment obligations under this Agreement, Customer hereby grants to JASE a security interest in all Customer Data stored in JASE's database (and Customer hereby authorizes JASE to file all documents as are necessary to perfect such security interest). In addition, in the event of Customer's failure to pay amounts due and payable hereunder, unless the unpaid amount is subject to a good faith dispute and Customer has provided notice of such dispute in accordance with Section 22, JASE shall have the right to suspend use of the Service, without liability to Customer, until such amounts are paid in full. Customer will continue to be charged for User Licenses during any period of suspension. JASE reserves the right to impose a reconnection fee of $500.00 in the event of a suspension and subsequent request for reconnection by Customer. In addition to all other remedies available to JASE, JASE shall be entitled to receive interest of 1.5% per month on any delinquent amount, or the maximum permitted by law, whichever is less.
24. Governing Law and Jurisdiction: This Agreement shall be governed by and construed exclusively in accordance with the laws of the Commonwealth of Virginia, without regard to its conflicts of laws provisions. Jurisdiction and venue for any dispute hereunder shall be in the state and federal courts located in Norfolk County, Virginia, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts.
25. Publicity: Customer agrees that, during the Term, JASE may use Customer’s name and trademarks in JASE’s advertising, publicity and other promotional activities. JASE shall comply with applicable trademark usage guidelines or other instructions provided by Customer in writing regarding the proper use of its trademarks.
26. Email Policy:
26a. Email Volume: Email sent from the Service is divided into two categories; email sent to users ("Internal Email") and email sent to leads ("External Email"). Internal Email volume is unrestricted, while external email volume is based on a monthly allowance. Customer may send an unlimited volume of Internal Email to valid email addresses directly associated with users in the Customer's JASE Marketing Manager account. Customer may receive a monthly allowance of External Email which may be sent to valid email addresses directly associated with leads in the Customer's account. The available volume is based on the current number of user licenses and Service edition. The monthly allowance is reset on the first day of each calendar month. The unused portion of a monthly allowance shall not accrue and is not available for use in any subsequent month. Customer may enable additional email volume, in excess of the monthly email allowance, at a cost of $.02 per email by providing written notice to JASE and charges for such additional email volume will be charged in the next billing cycle. Enterprise Edition: 250 emails per seat - $.02 per email over allowed amount. Small Business Edition: 150 emails per seat - $.02 per email over allowed amount. Personal Edition: 50 emails per seat - $.02 per email over allowed amount
26b. ISP Reported Bouncebacks: Customer's email sending activities shall not result in bounce results, as reported by Internet Service Providers (e.g. Google, Yahoo, Hotmail) in excess of the following limits (exceeding said limits may result in temporary or permanent disabling of Customer's email service) - 0.3% over 24 hours for spam complaints; 8% over 24 hours for hard bounces; 5% over 24 hours for unknown user bounces; 5% over 24 hours for soft bounces.
26c. Deliverability: JASE makes no guarantee with regard to delivery of email generated by the email service available through the Service.
26d. Spam: Customer is prohibited from transmitting, distributing or delivering unsolicited bulk or commercial email through the Service. Customer agrees that all emails sent, or caused to be sent, by Customer to or through the Service shall be 100% opt-in and shall not use or contain invalid or forged headers; use or contain invalid or non-existent domain names; employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; use other means of deceptive addressing; use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party; or contain false or misleading information in the subject line or otherwise contain false or misleading content. Customer shall at all times comply with the CAN-SPAM Policy which may be viewed at http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm.
26e. Email Content: Customer shall not directly or indirectly send, transmit, handle, distribute or deliver any email through the Service (nor assist in any such action, nor engage or enlist another to do so) with content, or in a manner that: (a) is threatening, abusive, harassing, or defamatory; (b) is deceptive, false, misleading or fraudulent; (c) is invasive of another's privacy; (d) contains vulgar, obscene or indecent material; (e) infringes any third party's intellectual property right(s); (f) violates export control laws and/or regulations; (g) violates the usage standards or rules of an entity affected by User's use, including without limitation any ISP or news or user group (h) is legally actionable by private parties and/or (i) is in violation of any applicable local, state, national or international law or regulation, including without limitation the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) , 15 U.S.C. sec. 7701 et seq.
26f. Violations and Enforcement: If JASE believes that Customer has breached any of the provisions of Section 25(d) or 25(e) above, it may, without notice, in addition to all other remedies available to it, take such action as it deems appropriate, including but not limited to: Requiring Customer to use a third-party email provider at an additional charge of $250.00 per month for integration and maintenance services, blocking the delivery of Customer's email messages and/or suspending Customer's use of the Service.
27. Entire Agreement: This Agreement, together with any outstanding Order Forms, contain the sole and entire agreement and understanding between JASE and Customer with respect to the entire subject matter hereof. Any and all prior or contemporaneous agreements (including any prior license agreement with a current term), discussions, negotiations, commitments and understandings, whether oral, written or otherwise, related to the same subject matter are hereby superseded and/or merged herein.
28. Notices: All notices under this Agreement shall be in writing and shall be delivered to the address set forth above for JASE or, to Customer, at the address set forth in the Order Form, by registered mail-return receipt requested, personal delivery, facsimile or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) five (5) business days after mailing; (iii) upon sending by confirmed facsimile or by email provided a confirming copy of such notice is mailed as provided herein on the day of dispatch.
29. Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provisions shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
30. Amendments. JASE may modify the terms of this JASE Marketing Manager Service Agreement Terms and Conditions at any time by posting the revised JASE Marketing Manager Service Agreement Terms and Conditions on this website. Customer's continued use of the Service shall constitute acceptance of such revised JASE Marketing Manager Service Agreement Terms and Conditions.
31. Successors and Assigns: This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
32. Relationship of the Parties: The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
33. No Third Party Beneficiaries: There are no third party beneficiaries to this Agreement.
 
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