JASPER 

TERMS OF JASPER PIM SAAS SERVICE 

Last Revised:  April 22, 2019

These Terms of Jasper PIM SaaS Service (“TOS”) are between you (“You” or “Your”, as further defined below) and Jasper Interactive Studios, Inc. (“Jasper”).

Jasper makes available a multi-tenant product information management (“PIM”) software as a service  These TOS govern your use of such services. 

You may contact Jasper by e-mail at legal@jasperpim.com with questions about or notices regarding these TOS.

PLEASE READ THESE ENTIRE TOS CAREFULLY BEFORE USING THE SERVICE. 

THESE TOS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CERTAIN EXCLUSIONS AND LIMITATIONS, INCLUDING THE FOLLOWING:

  • DISCLAIMERS REGARDING THE JASPER PIM SAAS
  • LIABILITY LIMITATIONS AND EXCLUSIONS
  • AN INDEMNITY FROM YOU
  • A FORUM SELECTION CLAUSE
  • A WAIVER OF CLASS ACTION DISPUTES

THESE TOS ARE EFFECTIVE UPON ACCEPTANCE (“ACCEPTANCE”).  BY USING THE SERVICES OR BY CLICKING THE APPROPRIATE “SIGN UP”, “ACCEPT”, OR SIMILAR BUTTON, YOU ACKNOWLEDGE READING, UNDERSTANDING AND ACCEPTING THESE TOS. 

IF YOU ARE AGREEING TO these tos ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN YOU REPRESENT AND WARRANT TO JASPER THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR ENTITY TO THESE TOS AND, IN SUCH CASE, THE TERM “YOU” SHALL REFER TO SUCH COMPANY OR ENTITY.   

IF YOU DO NOT AGREE TO BE BOUND BY ANY PART OF THESE TOS, OR DO NOT HAVE SUCH AUTHORITY, THEN YOU MUST NOT USE ANY OF THE SERVICES AND MUST CEASE ANY USE OF THE SERVICES IMMEDIATELY.SELECT

1.DEFINITIONS; SCHEDULES

1.1. Select Definitions. The following capitalized terms have the meanings set out below unless defined elsewhere in these TOS.

(a) “Acceptable Use Policy” means Jasper’s Acceptable Use Policy located at www.jasperpim.com/acceptable-use-policy, as may be updated by Jasper from time to time. 

(b) “Access Methods” means the user identifiers and passwords for the PIM SaaS used to verify a User’s credentials to use the PIM SaaS pursuant to these TOS.

(c) “API” means any application program interface made available or provided by Jasper in connection with the PIM SaaS.

(d) “Jasper Materials” means (i) the Service Software and APIs; (ii) any and all other information, data, documents, materials, methods, processes, software and other technologies that are provided or used by Jasper to provide or make available the PIM SaaS or any Service Software or APIs; (iii) any and all information technology infrastructure used by Jasper in performing or making available the PIM SaaS or any Service Software or APIs, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks; (iv) anything developed or delivered by or on behalf of Jasper under these TOS; and (v) any Modifications any of the foregoing.  The terms “Jasper Materials” does not include any Third Party Tools and Services.

(e) “Feedback” means suggestions, comments, or other feedback provided by You to Jasper with respect to the Services.

(f) “Force Majeure” means any occurrence beyond the reasonable control of Jasper or its subcontractors or third party providers, including, any act of God, disaster, fire, flood, earthquake, explosion, riot, war, terrorism, strike, sabotage, nuclear incident, act of government, Internet  service  failure or delay, communication line or power failure, denial of service attack, inoperability or destruction of any computer equipment or software, or cloud service failure.

(g) “Modifications”means any modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(h)“Order Form” means an ordering document for subscription(s) to the PIM SaaS that references these TOS and is executed by You and a Reseller, and that is accepted by Jasper.

(i) “Output” means any product data and information reports or other output of the PIM SaaS published directly to Your   owned or controlled e-commerce and related systems.

(j) “Personal Information” means information about an identifiable individua.;

(k) “PIM SaaS” means the PIM software as a service made available as a subscription by Jasper, including the making available of the Service Software and APIs. 

(l) “Reseller” means a reseller authorized by Jasper to resell and provide first-tier support for the Services, and who is engaged by You to provide PIM SaaS ordering assistance.

(m) “Service Software” means the Jasper software application(s) or other software, and all Modifications of the foregoing, that Jasper makes available for online remote use of as part of the PIM SaaS.

(n) “Third Party Tools and Services” means materials and information, in any form or medium, including any software, services, content, documents, data, content, specifications, products, infrastructure, equipment or components of or relating to the Services that are not proprietary to Vendor.  

(o) “use” means to access and use the PIM SaaS remotely. 

(p) “Users” means those employees, agents, and independent contractors of You that are authorized by You to use the Services in accordance with these TOS.

(q) “Your Material”means any data, information, content, records, and filesthat You (or any of Your Users) loads, transmits to, or enters into thePIM SaaS. 

2. TERM

2.1. Term.   These TOS are effective during the period commencing as of the date of Acceptance (as defined in the recitals above) and expire on the date that the last Order Form hereunder expires or is terminated, unless these TOS are terminated earlier in accordance with these TOS  (“Term”).   The term of each Order Form is determined between You and the Reseller with whom You place an order pursuant to an Order Form for the PIM SaaS.

3.PIM SAAS 

3.1. Making Available.  Jasper will make available to You during the Term the PIM SaaS ordered by You pursuant to an Order Form, subject to the terms and conditions of these TOS.   

4.GENERAL RESTRICTIONS; SUSPENSION

4.1. Acceptable Use Policy.  You agree to comply with the Acceptable Use Policy.  The Acceptable Use Policy is incorporated into these TOS by this reference.

4.2. Users. 

(a) Upon Your request, Jasper will issue one or more administrator User accounts to You that provides You with the capability to add additional administrator accounts for Users or to create general User accounts for Users that You wish to use the PIM SaaS.  You will ensure that Users only use the PIM SaaS through such administrator or general User accounts.  You will not allow any User to share any User accounts with any other person.  You will promptly notify Jasper of any actual or suspected unauthorized use of the PIM SaaS.  Jasper reserves the right to suspend, deactivate, or replace the any User account if it determines that such account may have been used for an unauthorized purpose.

(b) As between You and Jasper, You are responsible for (i) each Users’ compliance with, and breach of, these TOS; (ii) identifying and authenticating all Users;  and (iii) all use of the Services, Your Material and any Output by any person by or through the Access Methods or any other means or devices controlled by You or any User, as well as any conclusions, decisions or actions based on such use or receipt. 

4.3. Your Material; Output.  As between the parties, You have sole responsibility for (i) Your Material;  (ii) Your Material complying with the Acceptable Use Policy; (iii) any storage, backup and retrieval of Your Material and any Output; and (iv) any transmission errors, corruption, or compromise of Your Material or Output as transmitted from You or any User, transmitted via any third party providers, or otherwise transmitted via the Internet.  You agree that Jasper does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, legality, reliability, or appropriateness of any Your Material.

4.4. Export Restrictions.  You will comply with all export laws and regulations that may apply to its access to or use of the PIM SaaS.

4.5. Third Party Tools and Services.  You acknowledge and agree that the Services interoperate with several Third Party Tools and Services and that the Services may be highly dependent on the availability of such Third Party Tools and Services.  

4.6. Service Control.  As between the parties, Jasper has and will retain sole control over the operation, maintenance and management of the PIM SaaS, including the selection, deployment and Modification thereof.  Jasper may charge fees for new products, modules and services.  

4.7. APIs.  Jasper may make various APIs available via the PIM SaaS from time to time in its discretion to support Your use of the PIM SaaS.  You acknowledge and agree that the APIs are made available solely to support use of the Services. You are responsible for making and maintaining all necessary arrangements to access, use and interface with such APIs in accordance with all Jasper provided specifications, restrictions and guidances.  Jasper may from time to time require You, at Your own cost, to take such steps as are required to integrate any modifications or updates Jasper makes to its APIs.  Jasper reserves the right to restrict Your access to any APIs.

4.8. Unauthorized Use.  If You become aware of any actual or threatened activity prohibited by this Section 4, then You shall immediately: (a) take all reasonable and lawful measures that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Jasper of any such actual or threatened activity.

4.9. Suspension; Downtime.   Jasper may, at its discretion, suspend Your or any User’s access to or use of any or all of the PIM SaaS in connection with any of the following scenarios: (a) if You violate or any User violates any provision of these TOS; (b) for scheduled maintenance; or (c) to address any emergency security concerns.  

5.ORDERS; FEES AND PAYMENT

5.1. Reseller.  Order Forms for the PIM SaaS must be submitted to a Reseller.  The Reseller and You determine pricing and payment terms.  You pay the Reseller directly and Jasper invoices the Reseller.  

6.CONFIDENTIALITY

6.1. Confidential Information. Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential in writing or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Disclosing Party’s Confidential Information does not include information that is (a) already known to or independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information; (b) publicly available through no wrongful act of Receiving Party; or (c) received by Receiving Party from a third party who was free to disclose it without confidentiality obligations.

6.2. Obligations.  Receiving Party shall not: (a) disclose Confidential Information of the Disclosing Party to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements or have professional obligations of confidentiality no less protective of such Confidential Information than these TOS; (b) use Confidential Information of the Disclosing Party except to exercise its rights or perform its obligations under these TOS; or (c) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend. Each Receiving Party will take reasonable precautions to safeguard the other Party’s Confidential Information, which will be at least as great as the precautions that the Receiving Party takes to protect its own Confidential Information of a similar type.

6.3. Exceptions. Notwithstanding Section 6.2, Receiving Party may disclose Disclosing Party’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party to seek an appropriate protective order; (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Receiving Party’s business; or (c) or in the case of Jasper, to potential assignees, acquirers or successors of Jasper if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Jasper.

7.PRIVACY

7.1. Processing. You agree (on Your behalf and on behalf of each User) to Jasper’s access, use, collection, storage, disclosure, transmission and other processing (“Processing”) of Your and each User’s Personal Information for the purposes authorized under these TOS.  You acknowledge that Personal Information, including the Personal Information of Users, will be treated in accordance with Jasper’s privacy policy located at www.jasperpim.com/privacy

7.2. Consents.  You represent and warrant to Jasper, and promise,that Your Material will only contain Personal Information in respect of which You have provided all notices and disclosures (including to each User), obtained all applicable consents and permissions, and otherwise have all authority, in each case as required by applicable law, rule and regulation, to enable Jasper to provide the PIM SaaS, including with respect to the Processing of Personal Information, including by or to Jasper and to or from all applicable third parties.

8.INTELLECTUAL PROPERTY & OWNERSHIP

8.1. PIM SaaS; Jasper Materials Third Party Tools and Services.  As between the parties, all right, title and interest in and to the PIM SaaS, Jasper Materials, and Third Party Tools and Services, including all intellectual property rights and other proprietary rights therein, are and will remain the sole and exclusive property of Jasper and the respective third party rights holders.  These TOS do not grant any intellectual property right or license under any intellectual property right in or to the PIM SaaS, Jasper Materials, or Third Party Tools and Services.   All rights not expressly granted by Jasper to You under these TOS are reserved. 

8.2. Your Material ; Output.  You retain all ownership and intellectual property rights in and to Your Material and Output. You grant to Jasper a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Your Material and Output to provide and make available the PIM SaaS. Jasper may collect and analyze data and other information relating to the provision, use and performance of the PIM SaaS and related systems and technologies (including, without limitation, information concerning Your Material, Output and data derived from the foregoing). During and after the Term, Jasper may: (i) use such data and information to improve and enhance the PIM SaaS and for other development, diagnostic, corrective and optimization purposes in connection with the PIM SaaS and other Jasper offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. 

8.3. Feedback.   You or Users may from time to time provide Feedback, which You agree is hereby given entirely voluntarily.  Jasper shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Feedback, even if designated as confidential by You, shall not create any confidentiality obligation for Jasper.

9.DISCLAIMERS

9.1. AS-IS; AS AVAILABLE.   THE PIM SAAS, JASPER MATERIALS, THIRD PARTY TOOLS AND SERVICES AND OUTPUT ARE PROVIDED AND MADE AVAILABLE “AS IS” AND “AS AVAILABLE”.  JASPER DOES NOT WARRANT THAT ANY OF THE pim saas, JASPER MATERIALS, THIRD PARTY TOOLS AND SERVICES OR OUTPUt WILL MEET ANY REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES JASPER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE pIM SAAS, JASPER MATERIALS, THIRD PARTY TOOLS AND SERVICES or OUTPUT. 

9.2. NO WARRANTIES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JASPER DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRTTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF merchantibility, merchantaBLE QUALITY, quality, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, currency, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF OR UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JASPER WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.

10.LIABILITY 

10.1. ACKNOWLEDGEMENT.  The Parties acknowledge that the PROVISIONS OF THIS SECTION 10 HAVE been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remEDY.  THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 10 APPLY TO ALL CAUSES OF ACTION,  WHETHER BASED IN CONTRACT, TORT OR OTHERWISE (INCLUDING FOR FUNDAMENTAL BREACH, NEGLIGENCE AND GROSS NEGLIGENCE), REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY,  AND  EVEN JASPER IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.

10.2. LIMITATION.  IN NO EVENT WILL JASPER’S OR ITS AFFILIATES’  TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TOS EXCEED THE AMOUNT OF FEES FOR THE PIM SAAS PAID BY YOU IN THE PRIOR 1 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.   THE EXISTENCE OF MORE THAN ONE CLAIM UNDER THIS AGREEMENT SHALL NOT ENLARGE OR EXTEND THE FOREGOING LIMITATION. IN NO EVENT WILL DELEGO’S THIRD PARTY PROVIDERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

10.3. EXCLUSIONS.

(a) IN NO EVENT WILL JASPER OR ITS AFFILIATES BE LIABLE TO YOU OR ANY USER FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; (II) LOST SAVINGS, PROFIT, BUSINESS, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; OR (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.  

(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, JASPER AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER (I) RESULTING FROM ANY ACTS, OMISSIONS OR FAILURES OF YOU (INCLUDING ANY FAILURE TO SECURE ACCESS METHODS), ANY OF YOUR TECHNOLOGY SYSTEMS, NETWORKS OR INFRASTRUCTURE, ANY THIRD PARTY TOOLS AND SERVICES, ANY THIRD PARTY PROVIDERS, OR ANY APIS; OR (II) for any delay in performance or failure to perform due to any Force Majeure Event.   

11.INDEMNIFICATION

11.1. Your Indemnification Obligation. You shall, at Your expense, defend Jasper and its affiliates from and against any and all claims, demands, suits, actions or proceedings (“Claims”), and indemnify and hold harmless Jasper and its affiliates from and against any liabilities, losses, damages, fines, penalties, costs and expenses (including reasonable lawyers’ fees) suffered or incurred by Jasper or its affiliates as a result of any such Claims in relation (a) Your Material; (b) Your breach of these TOS;  or (c) Your fraud or willful misconduct.    

12. TERMINATION 

12.1. Termination. A party may terminate these TOS and any Order Form if the other party materially breaches these TOS and such breach is not cured within 30 days of after receipt of written notice of such breach. Jasper may terminate these TOS and any Order Form immediately if You breache Section 4 or 8.1 of these TOS.  No prepaid fees are refundable. 

12.2. Termination Obligations.  Upon termination or expiration of these TOS, You shall immediately cease using, and ensure each User ceases using, the terminated PIM SaaS.  In addition, You shall ensure that You have downloaded all of Your Material and Output prior to expiration or termination of these TOS.   

12.3. Survival.  Notwithstanding the termination or expiry of these TOS, all obligations which either expressly or by their nature are to continue after the termination or expiry of these TOS shall survive and remain in effect, including Sections 4.1, 4.2(b), 4.3, 4.4, 4.8,  6,  8, 9, 10, 11, 12.2, 12.3 and 13.

13. MISCELLANEOUS PROVISIONS

13.1. Reseller and Other Third Parties Cannot Bind Jasper.  Resellers and other third parties cannot bind Jasper, and do not have authority to bind or impose any obligation or liability on Jasper.

13.2. Notices.  Notices in connection with these TOS (i) to Jasper, must be sent by e-mail to legal@jasperpim.com; and (ii) to You, may be sent by Jasper by e-mail to the contacts provided in an Order Form or through a web site Jasper identifies.  Notice by e-mail is given as of the transmission date. 

13.3. Assignment.  You may not transfer (including by operation of law) or assign, or delegate these TOS, or any of its rights or obligations under these TOS, without Jasper’s prior written consent in each instance.  Jasper may assign, transfer (including by operation of law), or delegate these TOS or any rights or obligations under these TOS to any third party without Your consent.  Any attempted assignment in violation of this Section 12.1 will be null and void. These TOS will enure to the benefit of and be binding upon the parties and their permitted successors and permitted assigns.

13.4. Governing Law.  These TOS shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to conflicts of law principles. Neither of the United Nations Convention of Contracts for the International Sale of Goods or the Sale of Goods Act (Ontario), as amended, replaced or re-enacted from time to time, will apply to these TOS. 

13.5. Forum Selection.  The exclusive venue for all claims arising out of or in connection with these TOS shall be in Toronto, Ontario, Canada, but the parties agree that Jasper may seek equitable relief in any venue it so chooses. 

13.6. Trial by Jury Waiver.  The parties hereby irrevocably waive any right they may have to trial by jury.

13.7. Rights and Remedies.  Except as expressly specified in these TOS, in the event of any breach of these TOS, the rights and remedies of Jasper provided for in these TOS shall not be exclusive or exhaustive and are in addition to any other rights and remedies available at law or in equity.  In the event of any breach or threatened breach of Sections 6 or 8.1, money damages would be an inadequate remedy and Jasper shall be entitled to seek injunctive relief, without the need to post a bond or other security.

13.8. Independent Contractors.  Jasper’s relationship to You is that of an independent contractor, and neither party is an agent or partner of the other.  Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

13.9. Taxes.  You will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these TOS.

13.10. Entire Agreement; Amendment.  These TOS, as well as the Addendum, constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the parties with respect to the subject matter hereof.  These TOS may not be modified except in a written document signed by the Parties. 

13.11. Conflict.  In the case of a conflict between any documents in these TOS that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) these TOS, (2) the Acceptable Use Policy, and (3) an Order Form. l.

13.12. Waiver; Severability.  No waiver of any provision of these TOS is binding unless it is in writing and signed by all parties to these TOS entitled to grant the waiver.  If any provision of these TOS is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of these TOS shall be unimpaired and the parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable.  

13.13. Headings; Interpretation.  The section and subsection headings used in these TOS are for reference and convenience only, and shall not affect in any way the meaning or interpretation of these TOS. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively.

13.14. English Language.  It is the express wish of the parties that these TOS and all related documents be drawn up in English.  C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.