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Store PoliciesTerms and Conditions Licensee is referred to herein as “You.”” 1. SOCIALTEXT ENTERPRISE APPLIANCE LICENSE 1.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, and in consideration of Your payment of all applicable fees and taxes, Socialtext grants to You (and You agree to comply with) a non-sublicensable, non-transferable, non-exclusive, limited license to use: (i) certain Socialtext proprietary computer software identified as the Socialtext Enterprise Wiki in binary executable form only (the “Software”), that is installed in certain Socialtext proprietary computer hardware (the “Hardware”) and (ii) certain Socialtext proprietary documentation in the form generally made available by Socialtext to its customers for use with the Products (the “Documentation”). The Software, Hardware and Documentation are collectively referred to herein as the “Products”. Your use of the Products shall be restricted to creating, reading and adding content owned and controlled by you. The rights to create, read, and add content are hereby licensed to Your authorized end users. You agree to be responsible for the acts and/or omissions of any such end users in breach of the terms set forth herein. The License granted in this Section shall expire upon the termination of the Agreement. 1.2 THIRD PARTY COMPONENTS. Any third party component embedded, included or otherwise provided for use with the Products may only be used in conjunction with such Products ordered hereunder, and shall be subject to all the terms and conditions of this Agreement. The Products are designed for use with the equipment and accessories specified in the Documentation. Socialtext assumes no responsibility under this Agreement for obtaining or providing such equipment. You are also responsible for ensuring a proper environment and proper utilities for the computer system on which the Products will operate. To the extent that the Products include some components that are governed by licenses including provisions prohibiting their distribution under this Agreement, those components are governed solely by the respective appropriate licenses and not by this Agreement. To the extent Products include some components covered by licenses requiring the provision to You of corresponding source code for those components, Socialtext hereby offers the provision of such source code consistent with such licenses. 1.3 USER TYPES. Socialtext may have the right, upon reasonable notice, to audit user records (including but not limited to the user list) during normal business hours to ensure Licensee compliance with the requirements of this Agreement. A Wiki User and/or Reader account is individualized and may not be shared or used by anyone other than the one employee/agent of the company to whom the user account is assigned. The identification of Wiki Users and/or Readers 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, whereas Wiki Users must be predefined and Readers must be predefined. A Wiki User and/or Reader 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 subsequent change to a user’s role/responsibility such that he/she will clearly no longer need access to the service. 2. OWNERSHIP; RESTRICTED USE. For purposes of this Agreement, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof now or hereafter in force and effect worldwide. All ownership rights, title, and Intellectual Property Rights in and to the Products shall remain in Socialtext and/or its licensors, except that title to the Hardware shall pass to You upon receipt of all Fees by Socialtext (“Limited Title”) for the term of this Agreement only. All ownership rights, title, and Intellectual Property Rights in and to the content accessed through the Product are the property of the applicable content owner and may be protected by copyright and/or other applicable Laws. You agree not to, and not to allow others to: Ii) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Product or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms of the Software; (ii) create license keys that enable the Software; (iii) copy the Software; (iv) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Product or any component thereof; or (v) ship, divert, transship, transfer, export or re-export the Products or any component thereof into any country or use it 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 Software. 3. DELIVERY. You will be notified within two working days your necessary account information in order to set up your wiki. 4. TERM AND TERMINATION. This Agreement will commence upon the date you purchase the License and will continue for one year unless terminated earlier in accordance with this Agreement. 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, (i) if You are in breach of Section 2 (Ownership, Restricted Use) or Section 5 (Confidential Information); or (ii) You are in material breach of this Agreement more than twice in any three-month period, notwithstanding any cure of such breaches. Upon termination of this Agreement, all licenses, and any other rights and services provided by Socialtext to You as set forth in this Agreement shall cease immediately, Your Limited Title in the Hardware shall revert to Socialtext, and if the appliance is not hosted by Socialtext, You must immediately return the Product to Socialtext via Socialtext’s authorized return shipment process for receipt by Socialtext, including the inclusion of an RMA Number assigned by Socialtext. Termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve You of Your obligation to pay all fees that have accrued or are otherwise owed by You. 5. CONFIDENTIAL INFORMATION. In connection with performance of its obligations hereunder, a party (the “Discloser”) may disclose to the other party certain information it considers confidential and/or proprietary (“Confidential Information”) to the other party (the “Recipient”) including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (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 Software 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 Software for any reason at any time. Recipient shall not disclose or cause to be disclosed 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: not to disclose third party confidential or proprietary information disclosed to Recipient. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. A party’s Confidential Information shall not include information that: (i) is or becomes publicly available through an act or omission of Recipient; (ii) was in the Recipient’s lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient’s disclosure, and where Recipient was not aware that the information was the confidential information of Discloser; (iv) is independently developed by the Recipient without violation of this Agreement; 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. If the Product is returned due to damage or defect or upon termination of this Agreement, You will use commercially reasonable efforts to remove such Confidential Information prior to return to Socialtext. 6. LIMITED WARRANTY. Socialtext warrants to Licensee that for a period of sixty (60) days after delivery of the Product to You, the Product, if operated as directed in the Documentation, will substantially achieve the functionality described in the Documentation. In the event of a breach of the warranty set forth in this Section 6, Socialtext’s sole obligations and Your sole exclusive remedy will be for Socialtext to repair or replace the defective Product or, if Socialtext determines that it is unable to correct the error, refund to You a pro rata portion of fees actually paid by You to Socialtext for Products or services not delivered. 7. WARRANTY DISCLAIMER. Except as set forth in Section 6, neither Socialtext nor any other party makes any warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use or non-infringement. The product and services are provided by Socialtext and it’s Licensors “As Is”. Socialtext and its Licensors do not warrant that the product or any portion thereof are error or bug free, or that your use of the product or services will be uninterrupted. Socialtext and its Licensors assume no responsibility for the proper installation and use of the Product. Socialtext and its Licensors make no representations about any content or information made accessible by the product. The Product is not fault tolerant and is not designed, manufactured, or intended for uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Product could lead to death, personal injury, or environmental damage. 8. YOUR DATA. Socialtext does not own any data, information or other materials (“Data”) stored by You on the Product, 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 the Data solely (a) to perform the services to be performed by it under this Agreement and (b) to monitor and evaluate performance of the Product. Socialtext will treat all Data as Confidential Information. Following return of the Hardware to Socialtext and upon five business days request from You, Socialtext will provide You a copy of Your Data in standard machine-readable format. 9. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION. Each party represents and warrants that it has due power and authority to enter into and perform this Agreement without conflict under any obligation owed by such party. Socialtext further represents and warrants that Your use of the Products as permitted in this Agreement does not and will not infringe or misappropriate any Intellectual Property Right of any third party. Notwithstanding the foregoing, Socialtext makes no representations about any content or information made accessible by the product. In the event that any Product or any portion of the Products is found or is likely to be found to infringe or misappropriate any third party’s Intellectual Property Rights, then 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. If none of the foregoing options is available, then Socialtext shall promptly refund to Licensee all fees paid for the Products and this Agreement shall terminate with no further liability, other than any indemnifications obligations under this Section. Socialtext shall indemnify, hold harmless and defend You, Your affiliates, and each of Your respective officers, shareholders, members, directors, employees and agents (collectively, “Your Indemnified Parties”) against any claim, loss, liability, judgment, penalty, damage, assessment or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and costs) incurred or suffered by Your Indemnified Party resulting from, arising out of, or in connection with or otherwise with respect to any third-party claim, suit, action, or other proceeding (an “Action”) brought against or imposed upon Your Indemnified Party based on, arising from or relating to (a) any claim that the Product infringes any personal or proprietary right of any third party, including without limitation patent, trademark or copyright, except to the extent an Action results from use by You other than in accordance with the terms of this Agreement, or (b) a breach of any representation or warranty made by Socialtext in this Agreement. You shall indemnify, hold harmless and defend Socialtext, its affiliates, and each of their respective officers, shareholders, members, directors, employees and agents (collectively, the “Socialtext Indemnified Parties”) against any claim, loss, liability, judgment, penalty, damage, assessment or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and costs) incurred or suffered by any Socialtext Indemnified Party resulting from, arising out of, or in connection with or otherwise with respect to any Action brought against or imposed upon any Socialtext Indemnified Party based on, arising from or relating to (a) any claim that your Data infringes any personal or proprietary right of any third party, including without limitation patent, trademark or copyright, except to the extent an Action results from use by Socialtext other than in accordance with the terms of this Agreement, or (b) a breach of any representation or warranty made by You in this Agreement. The party seeking indemnification shall provide prompt notice of any Action for which indemnification is to the indemnifying party and reasonable assistance to defend the same, but no failure to do so shall relieve indemnifying party of its obligations hereunder. 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 indemnified party in any manner without the indemnified party’s prior written consent. 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 (other than fees owed to Socialtext for performance under this Agreement), 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 product or destructive properties of the product,. 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 Product giving rise to such liability. 11. IDENTIFICATION. Licensee hereby consents to Socialtext’s use of Licensee’s name and logo for the limited purpose of identifying Licensee as a Socialtext customer on locations such as Socialtext’s Web site, as a general list of customers and referenced in Socialtext’s corporate and promotional literature. Additionally, Licensee agrees that Socialtext may issue a press release identifying Licensee as a customer of Socialtext and describing Licensee’s intended use of Socialtext and the benefits that Licensee expects to derive from the use of Socialtext’s Software. The content of any press release identifying Licensee will be subject to Licensee’s prior approval, and Licensee’s approval will not be unreasonably withheld. 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. 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 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 lull 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 and the terms or other provisions located at any Socialtext uniform resource locators (URLs) referenced in this Agreement (which are all incorporated herein by reference), 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. Service Descriptions Socialtext offers the industry's most complete set of business-class wiki features. Socialtext wikis include an intuitive, easy-to-use web interface, plus integration of weblog (or blog) publishing and RSS feeds. Tight email integration simplifies publishing to the wiki and notification of changes. Additional flexibility is provided through features for mobile access and support for offline mode. Key features of the Socialtext wiki solution include:
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