YOUR USE OF THE PROPRIETARY JALAPEÑO EMPLOYEE ENGAGEMENT SERVICE OFFERED AT JALAPEÑOVAN.COM (THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH JALAPEÑO EMPLOYEE ENGAGEMENT LTD. (“JALAPEÑO”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
If you sign up for the Service on behalf of a Client, you represent that you are duly authorized to represent the entity and accept the terms of this Agreement on behalf of such entity, and any references to “you” in this Agreement refer to such entity and all of its employees, consultants and agents. You are responsible for all activity on the Service that occurs under your account.
Term and Termination
1.1 This Agreement will remain in effect until all of your subscriptions activated in accordance with this Agreement have expired or this Agreement is terminated by you or Jalapeño Employee Engagement (the “Term”).
1.2 Subscriptions purchased by you commence on the start date specified upon payment and continue for the subscription term selected at the time of payment. Subscriptions automatically renew, as described in Section 4.1.
1.3 You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by emailing email@example.com with the Subject: Cancel Subscription
1.4 Jalapeño Employee Engagement may terminate this Agreement at any time in the event you materially breach this Agreement and do not cure such breach within 30 days of Jalapeño Employee Engagement providing you with written notice (including notice by email). However, in the case of your nonpayment (including in the event when your credit card cannot be charged), Jalapeño Employee Engagement may suspend your access to the Service upon any such nonpayment and may terminate this Agreement, if such breach is not remedied within 30 days of notice by Jalapeño Employee Engagement to you. Notwithstanding the foregoing, Jalapeño Employee Engagement may immediately suspend or terminate your access to the Service without liability if you are in violation of Sections 3.1, or 12 of this Agreement, as determined by Jalapeño Employee Engagement in its sole discretion. Jalapeño Employee Engagement may also downgrade, suspend or terminate your access to the Service without liability, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 2.1 below. For instances other than non-payment or violation of Section 3.1, in the event you cancel your subscription or this Agreement is terminated by Jalapeño Employee Engagement or you, Jalapeño Employee Engagement will refund to you any prepaid fees covering any period of the term remaining after the date of termination for all subscriptions. However, no refund will be granted for the then-current month. Notice via email by Jalapeño Employee Engagement to you will be sent to the email address you have provided to us.
1.5 In the event your subscription is terminated, other than in instances where it is terminated by Jalapeño Employee Engagement for your nonpayment or violation of Sections 3.1 or 12, you will continue to have the ability to download the information provided, inputted or uploaded to the Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination. After such 30-day period or if your subscription is terminated due to your nonpayment or violation of Section 3.1, Jalapeño Employee Engagement shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, and may delete all of your Data contained in Jalapeño Employee Engagement’s systems or otherwise in its possession or under its control.
Modification of Service or this Agreement
2.1 Jalapeño Employee Engagement reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
2.2 Jalapeño Employee Engagement may modify, add, or remove portions of this Agreement at any time. In the event Jalapeño Employee Engagement determines it is necessary to make a material modification to this Agreement, you will be notified of such change and asked to affirmatively agree to such modified Agreement. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes.
2.3 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate this Agreement and discontinue any use of the Service.
Usage Rights; Restrictions; Support
3.1 During the Term, Jalapeño Employee Engagement grants you a limited, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (“Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Jalapeño Employee Engagement to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
- use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by Jalapeño Employee Engagement;
- use the Service for any fraudulent or inappropriate purpose;
- attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
- duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Jalapeño Employee Engagement;
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the documentation; or
- rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
3.2 Jalapeño Employee Engagement shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned outages (which Jalapeño Employee Engagement will make every reasonable effort to notify users of), or (b) any unavailability caused by circumstances beyond Jalapeño Employee Engagement’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with Applicable Law.
3.3 Jalapeño Employee Engagement shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Service, and the security of your Data. Jalapeño Employee Engagement shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your express request in connection with customer support matters. In the event we are compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
3.4 You are solely responsible for your Data, and all uses of your Data that occur through your account.
4.1 Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). You may change your subscription term at any time by contacting Jalapeño Employee Engagement using one of the methods set forth in the Contact Information section below. If you are paying by credit card, your credit card will be charged once a month for monthly subscriptions and at the time your annual subscription payment has been depleted based on your number of employees and subscription of the Service. Jalapeño Employee Engagement will email you a receipt when your card has been charged. If your card cannot be charged, Jalapeño Employee Engagement will notify and you will need to update your payment information. In the event you do not update your payment information within 22 days of Jalapeño Employee Engagement’s notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Service. There will be no refunds or credits for partial months of service.
4.2 Annual subscription pricing requires a one-year minimum commitment. If you cancel your full subscription, or your subscription is suspended for nonpayment, before the end of the one-year commitment period, you will no longer qualify for annual subscription pricing and you will be charged the difference between the monthly and annual commitment pricing for the number of months your subscription was active. If you cancel only a portion of your subscription, you may still qualify for annual pricing and the prepaid amounts attributed to that portion will be used against other elements of your subscriptions.
4.3 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which Jalapeño Employee Engagement may be required to collect from you and remit to appropriate taxing authorities, you alone are responsible for payment of all such taxes or duties.
4.4 Jalapeño Employee Engagement may at any time, upon notice of at least 90 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your annual subscription period will come into effect for any subsequent annual subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
Intellectual Property Rights
5.1 As between the parties, Jalapeño Employee Engagement owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. Jalapeño Employee Engagement may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
5.2 You retain all right, title and ownership interest in and to your Data. Jalapeño Employee Engagement has no right, title or interest in any personally identifiable information contained in or related to your Data.
5.3 You have no obligation to give Jalapeño Employee Engagement any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to Jalapeño Employee Engagement, Jalapeño Employee Engagement may use and include any such Feedback to improve the Service or for any other purpose. Accordingly, if you provide Feedback, you agree that Jalapeño Employee Engagement shall own all such Feedback and Jalapeño Employee Engagement and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign, irrevocably, exclusively and on a royalty-free basis, all such Feedback to Jalapeño Employee Engagement.
5.4 From time to time during the Term, Jalapeño Employee Engagement may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”), in each case pursuant to a statement of work executed by you and Jalapeño Employee Engagement. Jalapeño Employee Engagement shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use during the Term. Jalapeño Employee Engagement may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
6.1 Unless otherwise agreed to by you and Jalapeño Employee Engagement, during the Term, Jalapeño Employee Engagement may disclose your name as a customer of Jalapeño Employee Engagement and/or subscriber of the Service, and you hereby grant Jalapeño Employee Engagement the right to display your name, company, and logo in Jalapeño Employee Engagement’s marketing materials and on Jalapeño Employee Engagement’s public website, in each case in accordance with any branding guidelines you may provide to Jalapeño Employee Engagement.
7.1 Certain features of the Site may enable users to submit, upload, post, share, or display (hereinafter, “post”) comments or content, as well as to interact with others through user comment areas, message boards, direct messages, Jalapeño Employee Engagement’s blog, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as "User Content"). User Content includes any comments or reviews you provide to Jalapeño Employee Engagement about the Service, but excludes all Data.
7.2 You hereby grant to Jalapeño Employee Engagement an irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to Jalapeño Employee Engagement that you own or control all rights in and to such User Content and have the right to grant the rights above to Jalapeño Employee Engagement.
Warranties and Limitation of Liability
8.1 Jalapeño Employee Engagement represents, warrants, and covenants as follows: (a) the Service will perform substantially in accordance with the technical requirements documents that are generally provided by Jalapeño Employee Engagement in connection with the Service (“Documentation”); and (b) any professional services performed for you by Jalapeño Employee Engagement will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
8.2 To the maximum extent permitted by applicable law, except for the limited warranty provided above, jalapeño employee engagement hereby disclaims all other warranties, either express or implied, including implied warranties of merchantability or fitness for a particular purpose with respect to the service, software, documentation, deliverables and other materials and/or services. Jalapeño employee engagement does not warrant that operation of the service will be error-free or uninterrupted.
8.3 Except for (i) either party’s breach of its confidentiality obligations, (ii) a party’s violation of the other party’s intellectual property rights, (iii) either party’s indemnification obligations hereunder, or (iv) either party’s gross negligence or willful misconduct, (a) in no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this agreement, and (b) the aggregate liability of either party to the other with respect to this agreement is limited, to the extent permitted under applicable law, to the fees collected by jalapeño employee engagement from you pursuant to this agreement in the six months preceding the event from which the liability arose. The foregoing limitations apply even if such party knew or should have known of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy herein.
9.1 External Breach: In the event of a security breach, as defined by Applicable Law, by anyone other than your employee, contractor or agent, upon discovery of such breach, Jalapeño Employee Engagement will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the remedial actions Jalapeño Employee Engagement will undertake, and the timeline within which Jalapeño Employee Engagement expects to remedy the breach.
9.2 Internal Breach: In the event of a security breach, as defined by Applicable Law, by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and shall notify Jalapeño Employee Engagement immediately of the breach and steps you will take to remedy the breach.
10.1 You agree to indemnify, defend and hold harmless Jalapeño Employee Engagement, and its affiliates, officers, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with your use of the Software and/or Service in violation of this Agreement.
10.2 Jalapeño Employee Engagement agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or connected with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall Jalapeño Employee Engagement have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by Jalapeño Employee Engagement, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
10.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnified party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 10, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
11.1 This Agreement shall be governed by and construed in accordance with the substantive laws of the Province of British Columbia without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the Province of British Columbia, and or the courts of Canada. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Compliance with Laws; Disclaimers
12.1 Each Party shall comply with all Applicable Law in connection with its own activities under this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall Jalapeño Employee Engagement be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
12.2 Jalapeño Employee Engagement does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Law in the jurisdictions in which you use the Service, and any statements made by Jalapeño Employee Engagement to you shall not constitute legal advice.
13.1 Entire Agreement. This Agreement encompasses the entire agreement between you and Jalapeño Employee Engagement with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement.
13.2 Modification. This Agreement may only be altered, amended or modified by a written or electronic instrument executed by both parties.
13.3 No Waiver. The failure of Jalapeño Employee Engagement to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
13.4 Severabilty. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties, and shall not affect the validity and enforceability of any remaining provisions.
13.5 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
13.6 Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Jalapeño Employee Engagement’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
13.7 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. Jalapeño Employee Engagement shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.