Thank you for installing JS-Kit services on your website. The JS-Kit service and network (collectively, the “Service”) are provided by JackNyfe, Inc. dba JS-Kit, and its corporate affiliates (collectively, “us”, “we” or “the Company”). By installing or using the Service on your website, you (the “Publisher”) signify that you have read, understand and agree to be bound by the terms of this Publisher Services Agreement (the “Agreement”). If you do not agree to abide by these terms or any future Agreement, do not use or access (or continue to use or access) the Service.

PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS.

Recitals

  1. JS-Kit has developed a variety of Services (as defined below) that can be deployed by websites.
  2. Publisher desires to use the Services to enhance its website, and JS-Kit is willing to permit Publisher to access and use the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereby agree as follows:

  1. Definitions
    1. “Aggregate Visitor Data” means the aggregate of all content created and/or uploaded by a particular visitor to any JS-Kit Site.
    2. “Intellectual Property Rights” means patent rights (including without limitation patent applications and disclosures), copyrights, trade secrets, moral rights, business methods, know-how, and any other intellectual property rights, recognized in any country or jurisdiction in the world.
    3. “JS-Kit Site” means any website that is using the JS-Kit Service, whether operated by Publisher or another third party.
    4. “JS-Kit Network” means the collection of JS-Kit Sites that have opted-in to make their visitor content available to other JS-Kit Sites, as described in the “Visitor Content” section below.
    5. “Publisher Sites” means websites that are maintained, owned, or otherwise controlled by the Publisher.
    6. “Service” means JS-Kit software, both downloaded to a browser (“Client-side Software”) and which resides on JS-Kit’s servers (“Server-side Software”), which provides some additional functionality or utility to a webpage. As of the date of this Agreement, Services currently available include: Echo and Navigator. Additional Services may be added from time to time at JS-Kit’s sole discretion.
    7. “Software” means any JS-Kit or third-party software used by JS-Kit in providing the Services.
    8. “Term” means the term of this Agreement as defined in Section 6.1.
    9. “Visitor” means someone who uses a JS-Kit Service on a Publisher Site.
    10. “Visitor Content” means content created and/or uploaded by a Visitor to a Publisher Site, including the Visitor’s username.
  2. JS-Kit Services
    1. Service. Subject to Publisher’s compliance with the terms and conditions of this Agreement, commencing on the date the Services were first installed and continuing until termination and removal of the Services from Publisher Sites, JS-Kit will provide the Services in accordance with the fees described in Section 3.
    2. Restrictions. Publisher shall not attempt to reverse engineer, decompile or otherwise analyze the Server-side Software. Removing or altering JS-Kit branding on the services is prohibited, except as permitted with the purchase of the corresponding service.
    3. Acceptable Use Policies.
      1. Publisher acknowledges and agrees that JS-Kit does not monitor or police communications or data transmitted through the Services and that JS-Kit shall not be responsible for the content of any such communication or transmission.
      2. Publisher shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others, including privacy and anti-spamming laws.
      3. Publisher has or will put into place prior to the use of the Services, terms of service, a privacy policy, and any other agreements with Visitors necessary to properly apprise Visitors of the use of their data, including Visitor Content as set forth in Section 4.2 below, and to put Visitors on notice of, and requiring them to abide by, terms regarding their use of the services, including but not limited to, prohibiting:
        1. copyright infringement,
        2. other use of the Services in a manner that would violate any law, or
        3. that is or that may be perceived as being harmful, threatening, offensive, obscene or otherwise objectionable.
      4. Publisher acknowledges that the Services are not designed, intended or authorized for mission-critical or business-critical applications or other circumstances requiring fail-safe performance.
    4. Data Maintenance and Backup Procedures.
      1. JS-Kit shall follow reasonable archival procedures for Visitor Content. In the event of any loss or corruption of Visitor Content, JS-Kit shall use commercially reasonable efforts to restore the lost or corrupted Visitor Content from the latest backup of the Visitor Content maintained by JS-Kit.
      2. JS-Kit shall not be responsible for any loss, corruption, destruction, alteration or unauthorized disclosure of Visitor Content caused by any third party (except those third parties sub-contracted by JS-Kit to perform services related to Visitor Content maintenance and back-up). JS-Kit’s efforts to restore lost or corrupted Visitor Content pursuant to this Section 2.4 shall constitute JS-Kit’s sole liability and Publisher’s exclusive remedy in the event of any loss or corruption of Visitor Content.
    5. Upgrades and New Services. JS-Kit may from time to time at its sole discretion modify, upgrade, or extend the Services, to enhance security, usability, or for other reasons. Publisher may request new features and/or Services, and JS-Kit will address such requests on a case-by-case basis.
    6. Uptime and Scheduled Maintenance. JS-Kit will use commercially reasonable efforts to ensure the Services are available to Publisher without interruption. In the event that JS-Kit needs to conduct scheduled maintenance, JS-Kit will a) give Publisher reasonable notice of any scheduled downtime for the Services, and b) make commercially reasonable efforts to minimize the downtime, and to schedule the downtime so as to have the lowest impact on users of the Services.
    7. Registration Data and Account Security. In consideration of your use of the Services, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the JS-Kit Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
  3. Fees for Services
    1. The Service may be used at the subscription and bandwidth rates listed on http://www.js-kit.com/pricing or an Order Form issued by JS-Kit.
    2. The Services, and any other products or services that you purchase from us from time to time, will be sold to you under the Terms of Sale published at http://www.js-kit.com/termsofsale, which are incorporated herein by reference.
  4. Intellectual Property and Data
    1. Services. As between JS-Kit and Publisher, the Services and Software, and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of JS-Kit or its licensors.
    2. Visitor Content.
      1. Publisher only. Visitors shall, through notice provided by the Publisher, agree that by posting Visitor Content to any part of a Publisher Site, Visitors automatically grant, and represent and warrant that the have the right to grant, to JS-Kit a non-exclusive, transferable, royalty-free, worldwide license (with the right to sub license) to use the Visitor Content in order to facilitate its posting and storage on the Publisher Sites.
      2. Network wide. Publisher may participate in the JS-Kit Network, which would make visitor content from other JS-Kit Sites available on the Publisher Sites and vice versa, through the use of the dashboard control panel used by Publisher to administer the JS-Kit Service. By enabling the JS-Kit Network, Publisher agrees to extend the license granted in sub-section a of this section to include all JS-Kit Sites that have also opted into the JS-Kit Network, in which case Publisher shall have the same rights as JS-Kit in Aggregate Visitor Date from the JS-Kit Network, except that Publisher’s license in the content will be limited to use on Publisher’s Sites.
        1. For the sake of clarity, a “Publisher only” license of Visitor Content means that Visitor Content created on Publisher’s site will be available only on Publisher’s site, and other content created by a Visitor on other JS-Kit sites will not be available on Publisher’s site.
        2. “Network wide” means that Visitor Content created on Publisher’s Sites will be available to Visitors on the JS-Kit Network, and Aggregate Visitor Data created on the JS-Kit Network will be available on Publisher’s site.
    3. Aggregate Visitor Data. Nothing in this Agreement shall be construed to give Publisher any rights in the Aggregate Visitor Data beyond the rights Publisher has in the Visitor Content. That is, Publisher shall have rights in the data created by visitors to Publisher Sites, but shall not have rights in data created by the same or other visitors using the Services while not visiting Publisher Sites, except for those rights granted above to the extent Publisher opts into the JS-Kit Network.
  5. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
    1. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM PUBLISHER FOR THE SERVICES DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION.
    2. JS-Kit SERVICES AND JS-Kit SERVICES DOCUMENTATION ARE PROVIDED BY JS-Kit ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS, DEFECTS AND ERRORS” BASIS.
    3. JS-Kit MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO JS-Kit SERVICES OR JS-Kit SERVICES DOCUMENTATION. PUBLISHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT PUBLISHER’S USE OF JS-Kit SERVICES IS AT PUBLISHER’S SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, JS-Kit DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. JS-Kit DOES NOT WARRANT THAT JS-Kit SERVICES IS FREE OF VIRUSES, WORMS, TROJANS, SPYWARE OR OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION.
    4. JS-Kit WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM PUBLISHER’S USE OF, OR INABILITY TO USE JS-Kit SERVICES OR JS-Kit SERVICES DOCUMENTATION, FROM ANY TERMINATION OF THIS AGREEMENT, OR PUBLISHER’S ABILITY TO USE JS-Kit SERVICES FOR ANY REASON, FROM DISABLING OR REMOVING ANY APPLICATIONS HOSTED BY JS-Kit, FROM THE CONTENT CONTAINED IN ANY ADVERTISING, OR FROM ANY USE OR MISUSE OF JS-Kit SERVICES OR OF JS-Kit SERVICES CONTENT BY ANY VISITOR OR ANY OTHER THIRD PARTY, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA, BUSINESS OR ANTICIPATED PROFITS, WHETHER OR NOT JS-Kit WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  6. Term and Termination
    1. Term. This Agreement shall commence on the earliest date on which JS-Kit Services are first installed on Publisher sites and shall continue until termination.
    2. Termination. Either party may terminate this Agreement upon written notice to the other party with or without cause, i.e., for any reason or no reason, with respect one, several, or all of the Publisher Sites.
    3. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Publisher’s right to access and use the Services shall immediately terminate, Publisher shall immediately cease all use of the Services.
    4. Survival. The rights and obligations of JS-Kit and Publisher contained in the Sections: 3 – Fees for Services; 4 -Intellectual Property and Data; 5 – Disclaimer of Warranties; Limitation of Liability; 6.3 – Rights and Obligations Upon Expiration or Termination; 6.4 – Survival; 7 – Indemnification; 8 – General; shall survive any expiration or termination of this Agreement.
  7. Indemnification
    1. Each Party shall defend, indemnify and hold harmless the other , its officers, directors and employees, customers, users, and all third-party advertisers from and against any claims, losses or damages, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party allegations that:
      1. a third party has suffered injury, damage or loss resulting from the either party’s, or a Visitor’s, use of the Services; OR
      2. either party or a Visitor has used the Services in a manner that violates the Acceptable Use Policy of the Intellectual Property sections of this Agreement.
    2. Each Party’s indemnification obligations in this Section 7 are contingent upon:
      1. One party providing the other with prompt written notice of such third-party allegations;
      2. One party providing, at the other’s expense, reasonable cooperation to the other party in the defense and settlement of any claim arising from such allegations; and
      3. The indemnifying Party having sole authority to defend or settle any such claim.
    3. Third party advertisers and technology and service providers are intended third-party beneficiaries of this Section 7.
  8. General
      1. Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara County, California . JS-Kit and Publisher hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
      2. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
      3. Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth below or delivered in person. The notices shall be deemed to have been given upon:
        1. the date actually delivered in person;
        2. the day after the date sent by overnight courier; OR
        3. three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
    Notices may be confirmed by email or fax.

    Addresses for legal notices are:
    For JS-Kit:
    JS-Kit, Attn: Legal Notices, 1765 Crockett Lane, Hillsborough, CA 94010

    For Publisher:
    <<PUBLISHER NOTICE ADDRESS>>

    1. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
    2. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, acts of terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
    3. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including but not limited to any export laws and regulations of the United States.
    4. Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
    5. Assignment/Successors. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any assignment in violation of this Section will be null and void. “Change of Control” means, with respect to a party:
      1. the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; OR
      2. the merger of such party with another entity.
      3. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and assigns of the parties.
    6. Entire Agreement. This Agreement together with the exhibits, appendices and attachments hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
    7. Non-Exclusive Remedies. Except as set forth in Section 2.4, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
    8. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
    9. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
    10. Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
    11. Modifications:
      1. To JS-Kit Services. JS-Kit may make commercially reasonable modifications to the Service, or particular components of any Service, from time to time. JS-Kit will use commercially reasonable efforts to notify Publisher of any such changes.
      2. To Applicable Terms. JS-Kit reserves the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time. If we make a material change to this Agreement, then JS-Kit will notify you by either sending you an email to your designated contact or alerting you via the JS-Kit Administration Dashboard. If you do not agree to the changes, you will be entitled to terminate the Agreement effective on thirty (30) days’ advance notice by providing us written notice of termination due to the changes within seven (7) days of our notice to you. IF YOU DO NOT GIVE US NOTICE OF TERMINATION, YOUR CONTINUED USE OF THE SERVICES FOLLOWING OUR NOTICE TO YOU WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES.