THESE TERMS ("TERMS") ARE AGREED BETWEEN YOU ("CUSTOMER") AND SITEPEN, INC. ("SITEPEN"), AND GOVERN THE TERMS AND CONDITIONS OF YOUR ACCESS AND USE OF SITEPEN SUPPORT SERVICES DESCRIBED BELOW ("SERVICES").
HOWEVER, IF YOU HAVE REGISTERED AS OR ON BEHALF OF AN ENTITY, SUCH AS A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY "CUSTOMER" REFERS TO THE ENTITY, AND YOU REPRESENT AND WARRANT THAT YOU HAVE POWER AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE ENTITY.
BY CLICKING THE "ACCEPT" BUTTON FOR THESE TERMS, SIGNING A SITEPEN STATEMENT OF WORK AND/OR USING ANY OF THE SERVICES, CUSTOMER CONFIRMS ACCEPTANCE OF, AND AGREES TO BE BOUND BY, THESE TERMS.
(a) Subject to Customer's compliance under these Terms, SitePen shall provide the support services to Customer that are listed on Exhibit A ("Support") that Customer purchased for the corresponding product(s) on Exhibit A (each a "Supported Product").
(b) Upon Customer's acceptance of these Terms and/or payment for Support, SitePen will send Customer login information for Support. To initiate a Support request, Customer is responsible for creating a ticket via support.sitepen.com. Customer is responsible for obtaining its own internet and email access. SitePen will acknowledge receipt of the Support request via an automated email and attempt to respond to Customer by email within the estimated time in Exhibit A.
(d) SitePen may request access to Customer systems or software to assist Customer in isolating the cause of the issue. Customer is responsible for adequately protecting its systems and data whenever SitePen accesses them.
(e) Support is not available under these Terms to resellers, distributors, consultants or other persons attempting to use or resell Support on behalf of multiple customers.
(f) SitePen may, at its discretion, withdraw Support from any Supported Product or version or release of a Supported Product, with thirty (30) days advance notice and a prorated refund, or may require Customer to upgrade to a supported version or release of a Supported Product or browser in order to continue receiving Support for such Supported Product.
(g) Support availability may occasionally deviate due to system maintenance, company events, U.S. holidays and events beyond SitePen control.
(h) Support is provided primarily by web forum accompanied by email notifications with limited telephone support. On-site, in-person and other maintenance and support, training and professional services are not included, but may be available by separate, written agreement with SitePen.
Pricing and Payment. Support fees are listed in Exhibit A, and are payable in US dollars. SitePen may change pricing at the time of Support plan renewal. All Support purchases are non-cancelable and non-refundable, e.g., if these Terms or any Support is terminated by Customer before full performance of the Support requested, all remaining Support fees are non-refundable. The Support fees may be paid by wire transfer or check and must be paid by Customer according to the payment terms in Exhibit A. All taxes are Customer’s responsibility, other than taxes on SitePen income or profits.
Non-SitePen Products. The licensing of each Supported Product is governed by the terms of an end user license agreement between Customer and a third party. SitePen is not a party to that end user license agreement and assumes no obligations under it. Further, SitePen is an independent contractor and neither party is the agent or employee of the other.
Limited License to Support Deliverables. Subject to Customer’s compliance with these Terms, including payment, SitePen hereby grants Customer, with regards to any document, software or other item owned by SitePen and delivered to Customer in connection with any Support Issue on Exhibit A (“Support Deliverable”), subject to the paragraph below titled “Free and Open Source Works”, a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license to make, have made, use, sell, copy, modify, create derivative works based upon, distribute, display, and perform such items. Subject to such licenses, SitePen retains all ownership in and to any Support Deliverables, and all rights not granted hereunder are reserved to SitePen.
Ownership and Intellectual Property Rights to Development Deliverables.
(a) Application to Development Deliverables Only. This Section applies only to any document, software or other deliverable delivered to Customer in connection with any Development Issue on Exhibit A (each a “Development Deliverable”).
FOSS means software and/or documentation owned by third parties that is licensed as free and open source software and/or documentation.
Innovations means all Development Deliverables, inventions, improvements, and other works of authorship and computer programs that SitePen may conceive or develop in the course of providing the Services with respect to a Development Issue on Exhibit A (“Development Services”) or as a direct result of providing the Development Services.
Intellectual Property Rights means collectively all worldwide patent rights, copyright rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights.
Open Source Package Rights means rights to any work that is an improvement or change to an open source package or namespace (e.g., to dojo, dijit, dojox, dgrid, dair, util, deft, cometd, persevere, dwr, jquery) conceived, written or developed by SitePen in the course of providing the Development Services or as a direct result of providing the Development Services. A Package (“Package”) is an abstract container or environment created to hold software, in the form of human readable source code, within a logical grouping of unique identifiers or symbols (i.e., names). By way of example, a Dojo Package is defined by its identifier (e.g. dojo, dijit, dojox) and the source code that exists as part of that Package.
Moral Rights mean any rights to claim authorship of any Innovation, to object to or prevent the modification or destruction of any Innovation, to withdraw from circulation or control the publication or distribution of any Innovation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”
Pre-Existing Rights means Intellectual Property Rights that exist as of the effective date of these Terms and that are used or incorporated in any Development Deliverable under these Terms.
(c) Ownership of Innovations. Subject to Customer’s payment of all amounts due under these Terms, SitePen and Customer agree that (a) all Innovations shall be owned exclusively by Customer as works made for hire, (b) regardless of whether the Innovations are legally works made for hire, all Innovations shall be the sole and exclusive property of Customer, and (c) all Innovations shall be considered Customer Confidential Information as described below and (d) SitePen hereby irrevocably transfers and assigns to Customer all of SitePen’s right, title and interest in and to all Innovations, including all Intellectual Property Rights contained therein. This Section does not apply to Innovations covered under paragraphs titled “Pre-Existing Rights”, “Open Source Package Rights” and “Free and Open Source Works” of these Terms. At Customer’s request and expense, during and after the term of these Terms, SitePen shall execute all documents required to enable Customer to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Innovations. If Customer is unable for any other reason to secure SitePen’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Intellectual Property Rights or original works of authorship assigned to Customer as above, then SitePen hereby irrevocably designates and appoints Customer and its duly authorized officers and agents as SitePen’s agent and attorney in fact, to act for and in SitePen’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by SitePen.
(d) Moral Rights. Subject to Customer’s payment of all amounts due under these Terms, SitePen also hereby irrevocably transfers and assigns to Customer, and agrees to irrevocably transfer and assign to Customer, and waives and agrees never to assert, any and all Moral Rights (as defined above) that SitePen may have in or with respect to any Innovation, during and after the term of these Terms.
(e) Pre-Existing Rights. To the extent that SitePen owns (now or in the future) any Pre-Existing Rights, SitePen shall retain ownership of such Pre-Existing Rights, and SitePen hereby grants or will cause to be granted to Customer a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, sell, copy, modify, create derivative works based upon, distribute, display, perform and transmit any SitePen deliverable utilizing such Pre-Existing Rights, in connection with Customer’s use, license or other exploitation, implementation or utilization of such deliverable; provided that SitePen may elect to license any of its Pre-Existing Rights as FOSS works.
(f) Open Source Package Rights. SitePen shall contribute Package Rights to the Dojo Foundation or appropriate open source software foundation or project, depending on the Package, upon its then-standard terms, and Customer may obtain a license to these Open Source Package Rights directly from the associated open source software foundation or project that maintains the copyright for the supported Package.
Free and Open Source Works. However, to the extent that any Support Deliverable and/or Development Deliverable makes use of, interfaces with, or includes any software and/or documentation owned by third parties that is licensed as free or open source software and/or documentation (“FOSS”), other than the Supported Product, SitePen will supply Customer with the name of each FOSS work and a copy of or link to the licensing terms and conditions for such FOSS work. Notwithstanding anything to the contrary in these Terms or any other agreement between the parties, intellectual property rights or work product directly arising from Support performed on any FOSS work (such as the Supported Product) (“FOSS Rights”) can be contributed by SitePen back to the FOSS project per the terms of the project’s licenses and Customer shall have no ownership or license rights in such FOSS work except those provided by the applicable FOSS license. Customer is solely responsible for determining the acceptability of utilizing any FOSS work or license with any of its products, services or operations.
Limited License from Customer. Customer hereby grants SitePen a royalty-free, nonexclusive license (or sublicense) to any works and/or data that are owned or controlled by Customer and that are necessary or appropriate for SitePen to provide Support pursuant to these Terms.
Confidential Information. Neither party shall use, or disclose to any person, either during the term or after the termination of these Terms, any Confidential Information (as defined below) of the other party (or of its subsidiaries, affiliates, business partners, data providers and customers) except for performance under these Terms, for three (3) years from the last date of disclosure under these Terms. Each party shall use a commercially reasonable degree of care to avoid disclosure of any Confidential Information of the other party. "Confidential Information" means information concerning trade secrets and other proprietary rights, and any other business, marketing or technical information disclosed in relation to these Terms. If disclosed in writing, Confidential Information must be labeled as “Confidential” (or similar wording), and if disclosed orally, Confidential Information must be identified in writing as “Confidential” (or similar wording) within thirty (30) days after disclosure. However, Confidential Information shall not include information which (a) was already known to the receiving party prior to the time that it was disclosed to such receiving party hereunder; (b) is in or has entered the public domain through no breach of these Terms or other wrongful act of the receiving party; (c) has been rightfully received from a third party without knowledge of breach of any non-disclosure obligation; (d) has been approved for release by written authorization of the disclosing party; (e) is independently developed by the receiving party without use of the disclosing party’s Confidential Information, as evidenced by the receiving party’s written records or (f) is required to be disclosed by law, regulation or court order, provided that the disclosing party has been given reasonable notice of the need for disclosure and the opportunity to contest or limit it. The receiving party acknowledges that any breach of this paragraph will result in irreparable harm to the disclosing party, for which the disclosing party shall be entitled to seek injunctive relief.
(a) By SitePen. SitePen shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from any SitePen Development Deliverable under these Terms that, to SitePen’s knowledge, infringes or misappropriates any U.S. trade secret, trademark, or copyright. SitePen will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on (i) any combination with, addition to or modification (other than by SitePen) to any of SitePen’s Development Deliverables to the extent the infringement or misappropriation is based on such combination, addition or modification; (ii) the failure by Customer promptly to install any revision or replacement to the Development Deliverable that is provided by SitePen that would have eliminated the actual or alleged infringement or misappropriation; (iii) any specifications or requirements submitted by Customer; or (iv) any FOSS license or work.
(b) By Customer. Customer shall defend, indemnify and hold harmless SitePen from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from the use, operation, marketing or distribution of Customer’s products and services (other than to the extent indemnified by SitePen under “By SitePen” in this Section), including but not limited to the infringement or misappropriation of any Intellectual Property Rights.
(c) Indemnification Procedure. In the event of any loss, damage, liability or expense for which a party is obligated to indemnify under these Terms (the “Indemnifying Party”), the indemnified party (the “Indemnified Party”) shall promptly notify the Indemnifying Party in writing. The Indemnifying Party shall have sole control of the defense and all related settlement negotiations, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party and with the defense or settlement of such claim, suit or proceeding, at the Indemnifying Party’s expense, provided that the Indemnified Party shall have the right to consent to any settlement, such consent not to be unreasonably withheld or delayed, and that the Indemnified Party may participate in such defense with its own counsel at its own expense. This Indemnification Section represents the parties’ exclusive remedy with respect to infringement or misappropriation of third-party Intellectual Property Rights.
Term. These Terms commence on the date that SitePen sends Customer login credentials for Support under these Terms (or if the Support is a renewal, the effective date of renewal) and unless terminated earlier, will remain in effect for the duration specified in Exhibit A.
Termination. Either party may terminate these Terms if the other party breaches any material term of these Terms and fails to cure such breach within five (5) days following written notice. The paragraphs entitled Pricing and Payment, Non-SitePen Products, Limited License, Ownership of Innovations, Moral Rights, Pre-Existing Rights, Free and Open Source Works, Confidential Information, Indemnification, Term, Termination, Warranty Disclaimer, Limitation of Liability and General survive expiration or termination of these Terms.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY.
(a) WARRANTY DISCLAIMER. SITEPEN IS PROVIDING THE SERVICES, SUPPORT, SUPPORT DELIVERABLES, DEVELOPMENT DELIVERABLES, INNOVATIONS, PRE-EXISTING WORKS, AND ANY RELATED ITEMS OR RIGHTS ON AN “AS-IS” BASIS, AND HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO REPRESENTATION IS MADE THAT THE SERVICES, SUPPORT, SUPPORT DELIVERABLES, DEVELOPMENT DELIVERABLES, INNOVATIONS, PRE-EXISTING WORKS, AND ANY RELATED ITEMS OR RIGHTS WILL BE UNINTERRUPTED OR ERROR-FREE. SITEPEN MAKES NO WARRANTY REGARDING ANY THIRD-PARTY HARDWARE, SOFTWARE, LICENSE OR WORK, INCLUDING ANY FOSS LICENSE OR WORK.
(b) LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST PROFITS, AND/OR LOST SAVINGS, OR COST OF COVER, IN CONNECTION WITH THESE TERMS, EVEN IF THE OTHER PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SITEPEN’S LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THESE TERMS FOR THE RELEVANT SUPPORT PLAN DURING THE PRECEDING TWELVE (12) MONTHS. CUSTOMER agreeS that any claim or cause of action arising out of or related to use of SERVICES, SUPPORT, SUPPORT DELIVERABLES, DEVELOPMENT DELIVERABLES, INNOVATIONS, PRE-EXISTING WORKS, OR ANY RELATED ITEMS OR RIGHTS or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO CUSTOMER.
(a) Successors and Assigns. Customer shall not assign or delegate or subcontract any of its rights or obligations under these Terms, whether by sale, merger or operation of law or otherwise, without SitePen's prior written consent, and any attempt to do so shall be void. Except for the foregoing, these Terms benefit and bind the parties' respective successors and assigns.
(b) No Solicitation/Hiring. During the term of these Terms and for one year thereafter, Customer (on behalf of itself and its affiliates) agrees not to solicit or hire any SitePen employees who have directly or indirectly supervised or provided Support under these Terms, without SitePen’s prior written consent. In the event that Customer (or its affiliate) hires a SitePen employee in violation of this paragraph, Customer will pay SitePen the equivalent of current year’s annual salary of the affected employee.
(c) Governing Law. These Terms will be governed by and construed under California law, excluding its conflicts of law principles. The U.N. Convention on the International Sales of Goods is excluded. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
(d) Severability. If any provision of these Terms is held invalid or unenforceable by a court, the remaining provisions will remain in full force and effect, and the affected provision will be enforced to the maximum extent permissible.
(e) Notices. All notices required or permitted under these Terms will be in writing and delivered by first class mail, by courier or overnight delivery service, by certified or express mail, return receipt requested, or by email. Such notice shall be effective (a) if by courier, upon delivery, (b) if by overnight delivery service or express mail, one business day after dispatch, (c) if by certified mail, five days after dispatch, or (d) if by email, upon dispatch. All notices will be sent to SitePen at: SitePen, Inc., Attn: Director of Operations, 530 Lytton Avenue, 2nd Floor, Suite 5301, Palo Alto, California 94301, email: firstname.lastname@example.org; and to Customer at the address in SitePen's records.
(f) Entire Agreement. These Terms constitute the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, regarding that subject matter. Any waiver or modification of these Terms must be in writing and signed by both parties. No different or additional terms on any purchase order shall be effective. In the event of any conflict between these Terms and any Exhibit A to these Terms, such Exhibit A shall control.
(g) Force Majeure. Neither party will be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party, which may include, but are not limited to, acts of God, strikes, walkouts, riots, acts of war or terrorism, epidemics, failures of the internet or telecommunications facilities, governmental regulations, power failures, earthquakes or other disaster.
(h) Waiver. The waiver of any breach of any provision of these Terms will not constitute a waiver of any subsequent breach of the same other provisions hereof.
Exhibit A: Enterprise Support Plan
1. Supported Product(s)
- AngularJS 1.0+
- Backbone.js 0.9.2+
- CometD 2.4+
- cujo.js curl 0.7+
- cujo.js wire 0.8+
- dgrid 0.3+
- Dojo 1.3+
- dstore 1.0+
- Express 2.5+
- jQuery 1.3+
- jQueryUI 1.7+
- Intern 1.0+
- Lo-Dash 0.8+
- Maquette 2.0+
- MooTools 1.4.5+
- Node.js 0.10.28+
- OpenCoweb 0.7+
- Persevere 0.2+
- PhoneGap/Cordova 1.6+
- React 0.12+
- RequireJS 2.0+
- RxJS 4.1+
- Socket.IO 0.9+
- Twine 0.1+
- TypeScript 1.4+
- Underscore.js 1.3.1+
Officially supported browser versions are limited to those specified by SitePen from time to time on www.SitePen.com.
2. Support Features
Customer is entitled to receive Support by a SitePen web application developer who is an experienced user of the Supported Product. This Support Plan includes the following features:
(a) Support Issue. This type of issue is one of the following:
- Web Development Advice
- Architectural Guidance
- Assist in debugging Customer's application code
- Receive examples and guidance on how to use a specific piece of a Supported Product's functionality
- Fixes to bugs in a Supported Product
(b) Development Issue*. This type of issue is one of the following:
- Supported Product Feature Enhancements
- Custom Feature Creation/Enhancement
- Custom Widget Development
- Performance Optimization
- Widget Extensions
- Upgrading to a new version of a supported framework
- 1st/3rd Party API Integration
* Estimates must be determined to be less than 25 hours per development request.
Support is intended to address and resolve problems related to the Supported Products and to enable review of issues in the context of Customer’s implementation of the Supported Products. Reasonable efforts will be made to solve all such problems but SitePen gives no guarantee that every problem can be solved. If such problem is resolvable with reasonable efforts, SitePen will provide a patch or other solution to Customer and will contribute the same to the relevant open source project.
3. Additional Terms of Support
Hours of Operation. Support will be provided between the hours of 08:00 and 20:00 Pacific Time, Monday through Friday. Support availability may occasionally deviate due to system maintenance, company events, U.S. holidays and events beyond SitePen control.
Start Date. Customer’s Support Plan Start Date is the date that SitePen sends Customer its login credentials for this Support Plan (or if this Support Plan is a renewal, the effective date of renewal).
Initial Response Time. Acknowledgement of each Support request will be made within a maximum of one (1) business day during Hours of Operation from the Designated Contact’s initial submission of the ticket via the web-based ticket system.
For development requests, SitePen will clarify and validate all requirements and return a time estimate and a delivery date for Customer’s approval within two (2) business days.
Support Duration & Time. This Support Plan extends until the earlier of (a) one (1) year from Customer’s Support Plan Start Date or (b) utilization of one hundred (100) hours of Support Time (the “Expiration Date”). This is the total hours for all Support Issues and Development Issues combined, and subject to the separate limit of twenty-five (25) hours per Development Issue. This Support Plan does not automatically renew and all unused Support hours will be forfeited upon expiration of this Support Plan. However, if Customer chooses to renew this Support Plan to one of equal or greater value within 30 days of the Expiration Date, any unused Support Time will carry over upon renewal.
Time Calculation. Each Support ticket filed will be time-based and Support Time will accrue in 15-minute increments, rounded up.
Support Estimates. For the avoidance of doubt, estimates for all issues will be handled as follows:
(a) Support Issue. SitePen will address Support Issues as submitted and will provide an estimate only if the task is expected to take more then four (4) hours to complete. If resolving or fixing Customer’s issue is expected to take more than four (4) Support hours or cannot be completed within four (4) business days, SitePen will contact Customer and agree on a course of action before using any additional hours.
(b) Development Issues. Upon review of a Customer-submitted Development Issue, SitePen will provide an estimate for approval or denial to Customer, as a response to Customer’s submission, within two (2) business days. The estimate will provide:
- Clarification of requirements and any assumptions for the Development Issue.
- The estimated number of hours to complete the Development Issue.
- The estimated completion date to complete the Development Issue.
SitePen will not proceed with any Development Issue until Customer has approved it in writing in SitePen’s customer support system under the same issue number. Estimates do not include time for quality assurance activities, including associated bug fixes. All quality assurance activities accrue time in 15-minute increments, rounded up and will be applied to Support Time.
Correspondence Type. Support in this Support Plan will be provided via the following method(s):
(a) Written, web-based format within the original ticket the Customer creates, with an email notification of response.
(b) Web Conference. Customer may provide web conference account information if it prefers to partially communicate via this method with SitePen Support. Related Support tickets must be filed prior to SitePen attending a meeting via web conference. Customer is responsible for all web conference charges for itself and SitePen. Web conference meetings accrue time in 15-minute increments, rounded up and are applied to Support Time.
Persons/Entities Eligible for Support. This Support Plan is for use only by the individual or legal entity who registered for Support, and is non-transferable.
Pricing & Payment. Support fees for this plan are $24,999 and payable in US dollars.