JANRAIN, INC. MASTER LICENSE AND SERVICES AGREEMENT
NOTE: THIS MASTER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN LICENSEE (DEFINED BELOW) AND JANRAIN, INC.(“JANRAIN”) PERTAINING TO THE PRODUCTs AND/OR SERVICES TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN LICENSEE’S USE OF THE SOLUTION (AS DEFINED BELOW) AND THIS AGREEMENT WILL NOT APPLY EVEN IF YOU ARE REQUIRED TO CLICK THE BOX AFFIRMING YOUR CONSENT TO THE TERMS OF THIS AGREEMENT.
YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “LICENSEE”) WISHING TO USE THE SOLUTION LISTED ON THE ORDER CONFIRMATION PAGE, ORDER FORM, QUOTE AND/OR INVOICE (EACH AN “ORDER FORM”) WHICH WE PROVIDE TO LICENSEE IN CONNECTION WITH THE PURCHASE OF LICENSES TO THE SOLUTION DESCRIBED BELOW OR RELATED PROFESSIONAL SERVICES. THE TERMS OF EACH ORDERING DOCUMENT WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
If YOU DO NOT HAVE THE AUTHORITY TO BIND THE LICENSEE OR YOU OR THE LICENSEE do not agree to any of the terms below, Janrain is unwilling to PROVIDE THE SOLUTION TO THE LICENSEE, AND YOU SHOULD DISCONTINUE THE ORDER PROCESS.
The Order Form will set forth the (a) licenses to access and use one or more of Janrain’s proprietary Customer Identity Management software product offerings (each, a “Solution”) to be hosted and made available by Janrain in object code format on a software-as-a-service basis (the “Hosting Services”) and/or (b) related consulting, implementation or other professional services (“Professional Services”) that Licensee is purchasing. Upon Janrain’s acceptance of each Order Form, such Order Form shall constitute a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement.
2. LICENSE RIGHTS AND RESTRICTIONS.
2.1 Scope. Licensee may access and use the Solution in accordance with this Section 2 in connection with the number of authorized individual, unique, non-concurrent users of Licensee Properties (as defined in Section 2.2.1 below) set forth on the applicable Order Form(s) (collectively, the “Users”). For purposes of counting, a User is only counted when initially recognized by the Solution during the term. Unless Licensee is using the Mapping API feature of the Solution, the User will be counted as one user against the subscription level ordered for each initial use of a Third Party Provider annually. The number of Users that interact with the Solution is tracked by Licensor and the aggregate total usage against the subscription level is tracked by the Solution and available to Licensee in the online administration dashboard provided as part of the Solution.
2.2 Solution and Documentation. During the applicable Subscription Term (as defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, Janrain hereby grants to Licensee a limited, worldwide, non-exclusive, non-transferable license to: (a) access, use, perform and display the Solution, and to allow Users to access and use applicable user-interface portions of the Solution, as made available by Janrain in connection with the Hosting Services for Licensee’s business purposes related to managing User accounts within one or more production or non-production (i.e., internal testing and development) web sites or mobile applications that are owned or operated by Licensee and/or its agent(s) on behalf of Licensee (each, a “Licensee Property”); and (b) use and make a reasonable number of copies of any technical documentation and/or software development kit (“SDK”) made available to Licensee by Janrain that describes the operation and/or functionality of the Solution (collectively, “Documentation”) solely for Licensee’s internal business purposes.
2.3 Administrative Rights. The Solution will include a restricted-access administrative interface component (“Administrative Interface”) to allow employees or specific independent contractors designated by Licensee (“Administrative Users”) to access the configuration and settings components of the Solution to manage, configure and monitor the Solution for Licensee’s benefit. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Licensee shall be responsible for ensuring the security and confidentiality of all Admin User Access. Licensee acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
2.4 Restrictions. Except as otherwise expressly permitted under this Agreement, Licensee agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Solution (or any portion thereof) to third parties other than Users, including, but not limited to, making such Solution available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Solution (or any element thereof) into applications of Licensee or third parties other than the Licensee Properties; (d) create modifications to or derivative works of the Solution; (e) reproduce the Solution or Documentation; (f) use the Solution in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution.
3. DELIVERY OF HOSTING SERVICES; USER DATA.
3.1 Delivery; Service Levels. During the applicable Subscription Term, subject to Licensee’s payment of all related Fees (as defined in Section 5.1 below), Janrain or its third party hosting provider will set-up and host the Solution, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Licensee and Users to access and use the Solution in accordance with this Agreement. Janrain will manage and install all updates and upgrades that Janrain makes generally available to its customers for the Solution within the Hosting Infrastructure. Janrain will provide Hosting Services in accordance with the service levels and other requirements set forth in Exhibit A (the “Service Levels”). Janrain shall utilize measurement and monitoring tools and procedures required to measure actual performance against the applicable Service Levels.
3.2 User Data.
3.2.2 In connection with Licensee’s use of the Janrain Capture™ Solution, Administrative Users may elect to store certain User Data within the Hosting Infrastructure. In addition, Janrain may store and use certain activity log data relating to the use of the Solution within the Licensee Properties (“System Activity Information”) for billing and analytics purposes under this Agreement. No other User Data shall be stored by Janrain within the Hosting Infrastructure. Janrain (a) shall establish and maintain appropriate technical and organizational measures to protect against unauthorized access to any such User Data that is stored within the Hosting Infrastructure and (b) shall not, in any event, utilize User Data for any purpose other than to provide Hosting Services to Licensee. Janrain may disclose or make publicly available aggregate Janrain customer System Activity Information on an anonymous basis.
4. SUPPORT SERVICES; PROFESSIONAL SERVICES.
4.1 Support Services. During the applicable Subscription Term, subject to Licensee’s payment of all related Fees, Janrain shall provide technical support services to Licensee via phone, online services or email, as made available by Janrain, from 8:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday (excluding national holidays recognized by Janrain), regarding Licensee’s operation and use of the Solution, as further described in Exhibit B. Licensee will provide all support to Licensee’s Users.
4.2 Professional Services. In the event that Licensee has ordered Professional Services as specified on an Order Form, Janrain will perform the Professional Services described in one or more statements of work attached to such Order Form or otherwise agreed to in writing (each, a “Statement of Work”). Each Statement of Work will set forth the following: (a) the Professional Services to be performed, (b) any deliverables resulting from such Professional Services (“Deliverables”), (c) any specifications or other requirements pertaining to such Professional Services or Deliverables (“Specifications”), (d) the schedule for performance of such Professional Services (“Schedule”), (e) Fees for such Professional Services and Deliverables, (f) any applicable assumptions or conditions and (g) any other terms mutually agreed upon by the parties. All Statements of Work entered into by the parties will specifically reference this Agreement and the related Order Form and are deemed incorporated as part of this Agreement. Janrain will provide all Deliverables in accordance with this Agreement and the Specifications and Schedule. If Licensee notifies Janrain in writing within thirty (30) days after the Deliverables are made available to Licensee that Janrain is not in compliance with the foregoing covenant with respect to such Deliverables, Janrain will, as Licensee’s sole and exclusive remedy and Janrain’s sole liability, use commercially reasonable efforts to cause the Deliverables to conform to such covenant at no additional cost to Licensee. Any request made by Licensee for remedial work on a particular Deliverable after such thirty (30) day period may require the payment of additional Fees. Unless expressly stated otherwise in a Statement of Work, Janrain will retain all right, title and interest in and to all Deliverables (including any and all intellectual, property rights therein) and Licensee hereby irrevocably assigns to Janrain any and all ownership rights it may have in or to such Deliverables (including any and all intellectual, property rights therein). Licensee’s rights to the Deliverables shall be the same as the rights granted to Licensee under the Agreement with respect to the Solution to which such Deliverable pertains.
5.1 Fees. Subject to the terms and conditions below, all fees for licenses to the Solution (i.e., implementation, subscription and overage fees) and, if applicable, Professional Services (collectively, the “Fees”) will be set forth on the applicable Order Form.
5.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Licensee will pay to Janrain all undisputed Fees owed upon execution of the Order Form for Engage Pro version licenses, and within thirty (30) days for or such other period as may be specified in the Order Form, after Janrain’s issuance of an invoice pertaining thereto for all other Janrain products or services. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and Licensee shall pay all applicable, invoiced taxes (excluding those based on Janrain’s net income, property, and employees). Unless otherwise set forth in a Statement of Work, each party is responsible for its own expenses under this Agreement.
6. Term and Termination.
6.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial Subscription Term for each license purchased will be as set forth in the applicable Order Form.
6.2 Subscription Terms; Adjustment; Renewal. The term of each license to the Solution purchased by Licensee will commence on the date that both parties have executed the Order Form under which Licensee acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the period set forth on such Order Form, subject to any adjustment and/or renewal as described in this Section 6.1 (collectively, the “Subscription Term”). To the extent that any licenses have been purchased and are in effect (“Existing Licenses”) at the time that Licensee subsequently purchases additional User licenses under Section 1.0 above or acquires overage User licenses pursuant to the terms of the applicable Order Form (each, an “Additional License”), then the Subscription Term pertaining to the Additional Licenses shall equal the Subscription Term pertaining to the Existing Licenses so that the Subscription Term for all licenses shall be coterminous, regardless of when purchased and subject to payment of additional Fees for such Additional Licenses, as set forth in the applicable Order Form. Each Solution license will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of one (1) year and (ii) at the same Fees applicable during the immediately preceding term unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
6.3 Termination. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2 or 7), or (b) as set forth in Section 10. Additionally, a particular Order Form may be terminated by Janrain in the event that Licensee fails to pay applicable Fees when due.
6.4 Effect of Termination. Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.4, 5, 6.4, 7, 8.2, 9, 11 and 12 shall survive termination, (b) Licensee will promptly delete and destroy all copies of the Documentation or SDKs in its possession or control, and (c) Licensee shall pay to Janrain any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination.
7. PROPRIETARY RIGHTS; CONFIDENTIALITY.
As between the parties, Janrain will retain all ownership rights in and to the Solution, all updates and/or upgrades thereto, the Documentation, and other derivative works of the Solution and/or Documentation that are provided by Janrain, and all intellectual property rights incorporated into or related to the foregoing. All rights not expressly licensed by Janrain under this Agreement are reserved. As between the parties hereto, Licensee and its Users will retain all ownership rights in and to all User Data. The Solution and all trade secret information incorporated therein or derived, directly or indirectly, therefrom are confidential information of Janrain. Licensee shall keep in confidence and trust and not disclose or disseminate, or permit any employee, agent or other party working under Licensee’s direction to disclose or disseminate, the substance of any such confidential information of Janrain. The commitments in this Agreement will not impose any obligations on Licensee with respect to any portion of the received information which, as evidenced by independent documentation: (a) is now generally known or available or which hereafter, through no act or failure to act on Licensee’s part, becomes generally known or available; or (b) is rightfully known to Licensee at the time of receiving such information. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Janrain’s confidential information and that Janrain may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations. To Janrain’s knowledge, the use by Licensee of the Solution when and as provided under this Agreement does not misappropriate or infringe any U.S. copyrights or U.S. trade secrets of any third party.
8.2 Disclaimer. THE EXPRESS WARRANTIES IN SECTION 8 ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. JANRAIN DOES NOT WARRANT THAT LICENSEE’S USE THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
9. INDEMNIFICATION, LIMITATION OF LIABILITY.
9.1 Indemnification. Each party will indemnify, defend, and hold the other harmless from and against any and all liabilities, damages, losses, claims, costs, and expenses (including attorneys’ fees) arising out of or resulting from any violation of such parties representations and warranties set forth in Section 8.1 above. Licensee will defend at its own expense any action against Janrain brought by a third party to the extent that the action is based upon a claim that Licensee has violated the Licensee Policies or otherwise failed to comply with applicable law regarding such party’s personally identifiable information or other data and Licensee will pay those costs and damages finally awarded against Janrain in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. In the event of any third party action, suit, proceeding or investigation for which indemnification is sought (the “Proceeding”), the other party shall promptly notify the indemnifying party, provided that any failure to so notify the indemnifying party will not relieve the indemnifying party from any liability or obligation which it may have to any indemnified person except to the extent of any material prejudice to the indemnifying party resulting from such failure. If any such Proceeding is brought against an indemnified person, the indemnifying party will be entitled to assume and control the defense thereof. Each indemnified person will be obligated to cooperate reasonably with the indemnifying party, at the expense of the indemnifying party, in connection with such defense and the compromise or settlement of any such Proceeding. The foregoing indemnification shall not apply to the extent that any action by the indemnified party gives rise to or otherwise enhances any such claim.
9.2 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JANRAIN BE LIABLE TO LICENSEE, USERS OR TO ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOLUTION, SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER JANRAIN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO JANRAIN BY LICENSEE UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
10. PUBLICITY. Licensee agrees to grant to Janrain the right to use its name and a designated trademark on Janrain’s website and in sales presentations. If there is interest in additional marketing efforts such as a press release, case study or statement to the media, Janrain will provide Licensee with prior written notice and the opportunity to review any such marketing, sales and/or public relations materials. Approval shall be deemed granted if the other party does not object to the materials within three (3) business days of receipt of such notice. Licensee also agrees to act as a customer reference from time to time for Janrain during the term of this Agreement.
11. INJUNCTIVE RELIEF. The parties acknowledge that the Solution and Janrain’s confidential information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of Janrain’s confidential information, the Solution, or any information or data contained therein.
12. MISCELLANEOUS. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Janrain. The terms on any purchase order or similar document submitted by Licensee to Janrain will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on at the beginning of this Agreement and are deemed delivered when received. This Agreement may be executed in counterparts.
EXHIBIT A – SERVICE LEVELS
Uptime Commitment: Janrain will use commercially reasonable efforts to ensure that the Solution will be available at least 99.95% of the time, as measured monthly and calculated by subtracting from 100% the total percentage of 1minute periods during the monthly service period for which there is no external connectivity and/or the Solution does not service obligatory data requests as required for functionality in accordance with this Agreement, subject to the exclusions set forth below and also excluding scheduled downtime and any time necessary to implement updates, upgrades or other modifications to the Solution (“Uptime Commitment”). Janrain will notify Licensee (a) at least twenty-four (24) hours prior to any scheduled downtime and will use commercially reasonable efforts to minimize the effect of such maintenance on the Hosting Services and (b) as soon as practicable following any known and verified unscheduled downtime.
Exclusions: The Uptime Commitment shall not apply in the event that (i) any equipment (not in the custody or control of Janrain or its third party hosting provider) malfunctions; or (ii) there is an occurrence of one (1) or more causes beyond the control of Janrain or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the Internet generally, any actions or inactions of you or any third party, or other failures.
EXHIBIT B – SUPPORT SERVICES
1. Licensee Obligations. Licensee agrees to provide Janrain with all information and materials requested by Janrain for use in replicating, diagnosing and correcting an error or other problem with the Solution reported by Licensee. Licensee acknowledges that Janrain’s ability to provide satisfactory support services is dependent on Janrain having the information necessary to replicate the reported problem with the Solution.
2. Items Not Covered by Support Services. Janrain is not obligated to provide support services for errors or problems caused by the following:
3. Response Times. Janrain shall comply with the response times set forth below based on the severity level of the particular error.