Store Policies

Terms and Conditions

Licensee is referred to herein as “You.””

1. SOCIALTEXT ENTERPRISE APPLIANCE LICENSE

1.1 SOCIALTEXT ENTERPRISE SOLUTION. Socialtext will provide You with access to the Socialtext “software-as-service” enterprise collaboration solution, as described in the Order Form (the “Socialtext Enterprise Solution”) along with any additional services set forth in the Order Form (the “Services”) for the Term set forth in the Order Form.

1.2 LICENSE GRANT. Subject to the terms and conditions of this Agreement, and in consideration of Your payment of all applicable fees, Socialtext grants to You a non-sublicensable, non-transferable, non-exclusive, limited license to use the Socialtext Enterprise Solution to allow Your authorized Users (as defined below) to create, read and add content owned or licensed and controlled by You for Your own internal business purposes. The License granted in this Section 1.1 shall expire upon the termination of the Agreement.

1.3 THIRD PARTY COMPONENTS. You may access certain third-party functionality through the Socialtext Enterprise Solution, including but not limited to Google OpenSocial (the “Third Party Features”). The Third Party Features are subject to their own terms and conditions, and You are responsible for complying with such terms and conditions. Socialtext makes no representation or warranty regarding the Third Party Features, and they shall not be deemed to be part of the Socialtext Enterprise Solution or the Services under this Agreement. Without limiting the foregoing, the Socialtext Enterprise Solutions search functionality is powered in part by software known as the Java Platform Standard Edition Developer Kit (“JDK”). By entering into this Agreement, You also accept and agree to the Operating System Distributor License for Java 1.1, located here http://download.java.net/dlj/jdk/LICENSE, which governs the JDK.

1.4 USERS. You may allow Your employees (and contractors), students and agents, customers and business partners to use the Socialtext Enterprise Solution in connection with Your business. All persons whom You allow to access the Socialtext Enterprise Solution are referred to as “Users.” Each User will be required to establish an account. Each User account is individualized and may not be shared or used by anyone other than the individual to whom the User account is assigned. The identification of Users must be unique to an individual and may not be of a generic nature. The list will be maintained by Your site administrator(s), who will update the list so that it is current at all times. A User account may not be transferred to another employee during a current contract term period except upon termination of the User’s employment with You or if there is substantial change to a User’s role/responsibility such that he/she will clearly no longer need access to the service. You will not allow the number of Users to exceed the maximum number of Users for which You have paid the fees, as specified in the Order Form. Socialtext has the right, upon reasonable notice, to audit User records (including but not limited to the User list) during normal business hours to ensure Your compliance with the requirements of this Agreement. If Your authorized number of Users exceeds the number of Users for which You have obtained a license, without limiting any of Socialtext’s rights under this Agreement, You will promptly pay to Socialtext any fees associated with such excess Users. Socialtext will not request Users to agree to any terms that have not been approved by You. Your approval of any such terms will not be unreasonably withheld.

1.5 PAYMENT. You will pay Socialtext the fees set forth in the Order Form. You will be responsible for any taxes, levies or duties due with respect to the fees (other than taxes on Socialtext’s net income), whether or not set forth in the Order Form, and the amount payable to Socialtext shall not be reduced as a result of any tax withholding. All fees shall be paid in U.S. dollars and are be due and payable within thirty (30) days of the invoice date. If you are sending payment from outside of the United States, payment must be by wire transfer to Socialtext’s account.

2. OWNERSHIP; RESTRICTED USE. All ownership of the Socialtext Enterprise Solution and any related rights, title, and interest shall remain with Socialtext, including any copyright, patent, trademark, trade secret or other intellectual property rights.

You agree not to, and not to allow others your employees to: (i) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Socialtext Enterprise Solution or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms; (ii) create license keys for the Socialtext Enterprise Solution; (iii) copy, transfer, sublicense, loan, sell, or lease the Socialtext Enterprise Solution; or (v) ship, divert, transship, transfer, export or re-export the Appliance or any component thereof into any country or use the Socialtext Enterprise Solution in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Departments Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control, or any other applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to You any rights whatsoever in or relating to the source code of the Social Solution.

3. DELIVERY. The Socialtext Enterprise Solution shall be made available to You or, if You selected the Socialtext On-Site Appliance option, the Appliance will be shipped to You, within ten business days of the Effective Date. You agree that at the time of Your receipt of the Appliance (if applicable), You shall bear all risk of loss, theft or damage of any kind to such Appliance and that Your failure to obtain insurance at the time of Your receipt of such Appliance will be at Your own risk without liability of any kind to Socialtext. If You elect to receive the Socialtext Enterprise Solution through the Socialtext On-Site Appliance option, Socialtext grants to You a license to the hardware on which the Socialtext Platform is installed (the “Appliance”) for the duration of the Agreement, and the Appliance shall be deemed to be a part of the Socialtext Enterprise Solution under this Agreement. You are responsible for ensuring a proper environment for the Appliance. You will promptly return the Appliance to Socialtext following the termination of the Agreement via Socialtext’s authorized return shipment process, including the inclusion of an RMA Number assigned by Socialtext.

4. TERM AND TERMINATION. This Agreement will commence upon the Effective Date and will continue for the Initial Term and all the Renewal Term specified on Order Form unless or until terminated earlier in accordance with this Agreement (the “Term”). A party may, by written notice of default to the other party, (i) terminate this Agreement, in whole or in part, (a) if the other party materially breaches this Agreement, and the breaching party does not cure such material breach within thirty (30) calendar days after receipt of written notice of such breach; or (b) immediately following either party’s suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against the other party, appointment of a trustee or receiver for either party’s property or business, or any assignment, reorganization or arrangement by either party for the benefit of its creditors. Socialtext may immediately terminate this Agreement, in whole or in part, if You are in breach of Section 2 (Ownership, Restricted Use).

5. CONFIDENTIAL INFORMATION. A party (the “Discloser”) may disclose to the other party (the “Recipient”) information that is confidential or proprietary (“Confidential Information”), whether tangible, intangible, visual, electronic, present, or future information, including but not limited to: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) the terms of this Agreement and the discussions, negotiations and proposals related thereto.

The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Licensor reasonably communicated, or the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used. You acknowledge that the source and object code of the Socialtext Enterprise Solution remains a confidential trade secret of Socialtext and/or its licensors and that You are not entitled to review either the object code or the source code of the Socialtext Enterprise Solution for any reason at any time.

Recipient shall not use the Confidential Information of Discloser for any purpose other than performance under this Agreement and shall not disclose any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the Confidential Information to perform under this Agreement (“Authorized Personnel”) and who are bound by written agreement. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Notwithstanding the foregoing, Recipient may disclose the terms of this Agreement and information regarding the payment and performance under this Agreement to a potential counterparty to any financing or acquisition who has agreed to maintain the confidentiality of the information.

A party’s Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient’s lawful possession prior to the disclosure and was not obtained by Recipient from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient’s disclosure; (iv) is independently developed by the Recipient without use of the Discloser’s Confidential Information; or, (v) which is disclosed by Recipient as needed to comply with a court order, subpoena, or other government demand (provided that Recipient first notifies Discloser and gives Discloser the opportunity to challenge such court order, subpoena, or government demand). Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 5 or Section 2. Upon termination of this Agreement, the Recipient will return or delete the Discloser’s Confidential Information.

6. LIMITED WARRANTY. Socialtext warrants to You that, during the Term, the Socialtext Enterprise Solution will substantially perform the functionality described in the Services Description referenced in the Order Form. If the Socialtext Enterprise Solution is not performing in accordance with this warranty, you will provide written notice to Socialtext (the “Warranty Notice”) and Socialtext will use commercially reasonably efforts to repair or replace the Socialtext Enterprise Solution. In the event that Socialtext does not cause the Socialtext Enterprise Solution to perform in accordance with the foregoing warranty within thirty (30) days of the Warranty Notice, you may, as your sole and exclusive remedy, terminate this Agreement upon written notice to Socialtext and Socialtext will refund to You a pro rata portion of fees actually paid by You to Socialtext attributable to periods following the Warranty Notice. If You have elected the On-Site Appliance or the Virtual Appliance option, you will not send the Warranty Notice or be entitled to any rights under this Section 6 unless you have installed all updates provided to You by Socialtext.

7. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 6, NEITHER SOCIALTEXT NOR ANY OTHER PARTY MAKES ANY WARRANTY OF ANY KIND REGARDING THE SOCIALTEXT ENTERPRISE SOLUTION OR THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. The Socialtext Enterprise Solution and Services are provided by Socialtext “AS IS”. Socialtext and its licensors do not warrant that the Socialtext Enterprise Solution or the Services any portion thereof are error or bug free, or that Your use of the Socialtext Enterprise Solution or the Services will be uninterrupted. Socialtext and its licensors make no representations about any content or information made accessible by the Socialtext Enterprise Solution, including Your Data, or about the Third Party Functionality. The Socialtext Enterprise Solution is not fault tolerant and is not designed, manufactured, or intended for uses such as the operation of nuclear facilities, air traffic control, emergency response or life support systems, or in any circumstance where the failure of the Socialtext Enterprise Solution could lead to death, bodily, personal or property injury, or environmental damage.

8. YOUR DATA. Socialtext does not own any data, content, information or other materials or transmitted by You or any of Your Users on or through the Socialtext Enterprise Solution (“Your Data”), which shall remain Your exclusive property. For the term of this Agreement, You grant to Socialtext a non-exclusive, non-transferable, non-assignable, royalty-free right and license to use, modify, translate copy and adapt Your Data solely (a) to perform the Services and (b) to monitor and evaluate performance of the Products. Socialtext will treat Your Data as Confidential Information. Socialtext will use best standards in its industry to keep Your Data secure from unauthorized third party access. Socialtext will not disclose Your Data to any third parties without Your written agreement. Following termination of the Agreement or upon five business days request from You during the Term, Socialtext will provide You, on a date nominated by You (Data Transfer Date), a copy of a full image of Your Data (including all metadata) (up to date to the Data Transfer Date) in standard machine-readable format (Full Data Image). Socialtext has registered under the U.S.-EU Safe Harbor Framework as set forth by the U.S. Department of Commerce and will comply with such framework when processing Your Data under this Agreement. Socialtext will not locate or move Your Data outside of the United States.

9. INDEMNIFICATION.

9.1 SOCIALTEXT INDEMNIFICATION. Socialtext shall indemnify, hold harmless and defend You, Your affiliates, and each of Your respective officers, shareholders, members, directors, employees and agents against any third-party claim arising from the infringement by the Socialtext Enterprise Solution or the Services of any copyright, trademark, patent or applicable law, but excluding to the extent that such infringement arises from the combination of the Socialtext Enterprise Solution or the Services with any software, hardware, system or method not provided by Socialtext.

In the event of a claim for which Socialtext is obligated to provide indemnification under this Section 9.1, Socialtext shall, at its sole expense: (i) obtain for You the right to continue using the Products; (ii) replace the infringing Product or Product component with non-infringing equivalents that function the same in Socialtext’s reasonable judgment; or (iii) modify the infringing Product or Product components to make it non-infringing; or (iv) terminate this Agreement with no further liability other than its indemnifications obligations under this Section 9.1 and refund to You a pro rata portion of any fees actually by You to Socialtext for periods for which the Socialtext Enterprise Solution was not available or for Services not delivered.

9.2 YOUR INDEMNIFICATION. You shall indemnify, hold harmless and defend Socialtext, its affiliates, and each of their respective officers, shareholders, members, directors, employees and agents against any third-party claim arising from the infringement by Your Data or Your improper usage of the Socialtext Enterprise Solution or any copyright, trademark, patent or breach of any applicable law.

9.3 INDEMNIFICATION PROCEDURES. The party seeking indemnification shall provide prompt notice of any Action for which indemnification is sought to the indemnifying party and reasonable assistance to defend the same. The indemnifying party, at its option, will have sole control of the defense and all negotiations for any settlement or compromise of any Action, provided that indemnified party is entitled to participate in its own defense at its sole expense. Any settlement or compromise cannot obligate the indemnified party in any manner without the indemnified party’s prior written consent except as provided in Section 9.1.

10. LIMITATION OF LIABILITY. IN NO EVENT WILL SOCIALTEXT AND/OR IT LICENSORS BE LIABLE (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT AND WHETHER OR NOT SOCIALTEXT WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; OR (II) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SOCIALTEXT ENTERPRISE SOLUTION OR SERVICES OR DESTRUCTIVE PROPERTIES OF THE SOCIALTEXT ENTERPRISE SOLUTION OR SERVICES. IN NO EVENT SHALL SOCIALTEXT’S AND/OR IT LICENSORS’ TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE PRODUCTS OR SERVICES GIVING RISE TO SUCH LIABILITY.

The above clause will not apply to liability of Socialtext under clauses 8 (YOUR DATA) and 9 (INDEMNIFICATION).

SOCIALTEXT’S MAXIMUM TOTAL AGGREGATE LIABILITY FOR EACH NON WILFUL AND NOT UNLAWFUL FAILURE TO COMPLY WITH CLAUSE 8 (YOUR DATA) IS LIMITED TO $300,000 PER EVENT.11. IDENTIFICATION AND USER COMMUNICATION.

11.1 PUBLICITY. You hereby consent to Socialtext’s use of Your name and logo for the limited purpose of identifying You as a Socialtext customer on locations such as Socialtext’s Web site, in a general list of customers and referenced in Socialtext’s corporate and promotional literature. We must remove this reference to Your name if You request us to do so because of a change in Your government department policy. Additionally, You agree that Socialtext may issue a press release identifying You as a customer of Socialtext and describing Your intended use of Socialtext and the benefits that You expect to derive from the use of the Socialtext Enterprise Solution. The content of any press release identifying You will be subject to Your prior approval, and Your approval will not be unreasonably withheld. We must cease publishing or distributing such a press release if You request us to do so because of a change in Your government department policy.

11.2 USER COMMUNICATIONS. You grant Socialtext permission to send email communications to Your Users providing them with instructions, updates, tips and other information about the Socialtext Enterprise Solution. Socialtext must stop providing these communications if requested by a User (or the Customer on behalf of a User(s)).

12. MISCELLANEOUS. This Agreement is personal to You. You may not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of Socialtext. Any attempted assignment in derogation hereof shall be null and void. Socialtext may assign this Agreement to any entity that is controlled by or is under common control with Socialtext, to any successor in interest of Socialtext, or to any entity to which Socialtext sells all or substantially all of the assets associated with the Products. The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create an agency, partnership, or joint venture between the parties hereto. Both parties shall be responsible for performing their respective obligations as set forth herein. Upon termination, the following Sections of this Agreement will survive: 2, 4, 5, 7, 8, 9, 10 and 12. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and You and Socialtext agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California for any dispute arising from this Agreement.

The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches. Any notice given under this Agreement shall be in writing and in the English language and shall be delivered by certified or registered mail, postage prepaid, return receipt requested. Notices shall be deemed given upon acknowledgment of receipt. All notices to Socialtext must be sent to such address as provided at: http://www.socialtext.com/about/ or as otherwise provided in writing for such notice purposes, provided that a courtesy copy shall also be sent to the attention of the Socialtext Legal Department for all legal notices. Notices to You shall be sent to the address set forth on the first page of this Agreement or to any other address You specify in writing. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. You agree that this Agreement shall be construed as if both parties jointly wrote and prepared it.

This Agreement, including the Order Form, the terms or other provisions located at any Socialtext uniform resource locators (URLs) referenced in this Agreement, and any document specifically incorporated by reference into the Order Form), constitutes a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement, and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing, and all contemporaneous oral communications, and any terms contained in any related purchase order(s) or other documents pertaining to the subject matter of this Agreement shall be null and void. This Agreement may be modified only in writing signed by both parties.

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