“Account” means the billing account covering the fees paid for Your right to access and use of Jirav.
“Administrative User” means You, Your employee, contractor or agent who You authorize to use Jirav in the course of performing work for You.
“Client User” means an individual or entity who is a client of Yours (for example, to whom You provide financial planning and accounting services) and who is authorized by You to use Jirav for the client individual or entity’s own account or benefit.
“Confidential Information” means any non-public information provided under this Agreement by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party, which is provided to a third party free of any confidentiality obligation, or which is independently developed by the receiving party without the use of Confidential Information.
“Data” means the business and financial information uploaded by or for You, or by any User on your behalf or on behalf of a Client User to Jirav, including profit and loss, balance sheet, cash flow statements, sales and bookings, new hires, cumulative headcount, salary run rates, staff rosters, and KPIs.
“Department” means a specialized or separately tracked functional area within an organization or a division, such as Accounting, Sales and Marketing, General and Administrative, and Engineering.
“Jirav” means the Company’s cloud-based financial planning, analysis, dashboarding, reporting and forecasting software solution, known commercially as Jirav, which uses a dynamic toolset to connect modeled and historical operational data, resulting in the ability to plan and report on revenue, headcount, expenses, and other business and financial metrics. Jirav is designed for use by the managers of companies, and by professional service firms (such as accounting firms) who provide supporting services to companies. It is intended to provide Users with access to a company’s current operational, business and financial information to enable better decision making. As used in this Agreement, the term ‘Jirav’ includes any and all versions and modules or features of Jirav, including any trial use version, basic version and any full functionality version.
“Plan” means a budget, scenario or financial model that runs using Jirav.
“Read Only User” means a User with permission settings that allow him or her to read and execute a model, file or data but not to write to it (i.e., the user cannot input or modify a model, file or data).
“Read/Write User” means a User with permission settings that allow him or her to read, write to and execute a model, file or data.
“User” means an Administrative User or Client User, and includes Read Only Users and Read/Write Users, as applicable.
The words “include” and “including” mean “including but not limited to.”
- LICENSE; LIMITATIONS AND RESTRICTIONS
- Subject to Your compliance with the terms and conditions of this Agreement, Company hereby grants You (and Users authorized under Your account) a limited, non-exclusive, non-transferable license, without rights to sublicense, to access over the Internet and use, solely during the term of this Agreement the applicable version of Jirav that You have licensed under the Account, solely for Your own internal business purposes (which, for the avoidance of doubt, for accounting firms includes the right to use Jirav in support of the internal business of it clients).
- Your use of Jirav is subject to all of the conditions, limitations and restrictions applicable to Your Account (and, as applicable, to the Account under which You are a Client User), including, without limitation, any required minimum and maximum numbers of Departments, and limitations on the maximum number of Users, types of Users (whether Read/Write Users and Read Only Users or otherwise), and the numbers of Departments and Plans, and limitations on the amount of Data or Plans that may be run or stored within Jirav, including the number of Plans that may be concurrently run in-memory on one or more servers.
- You are responsible for compliance by each User under Your account with the terms of this Agreement and the Terms of Service. Additionally, You will require all Users to (i) keep all passwords used to access Jirav confidential and secure; (ii) not attempt to gain unauthorized access to Jirav or its related systems or networks; (iii) and enter Data completely and accurately into Jirav. You will not, and will cause all Users not to, impersonate another user or provide false user information or passwords or share accounts.
- You are responsible for examining all results produced by Jirav.
- You are solely responsible for the performance of all Your obligations under, and for all liabilities arising out of, any agreements You have with Client Users, including, without limitation, performance guarantees under service level agreements. As between the parties, You are solely responsible for complying with all applicable federal, state and local laws.
- DATA AND CONTENT
- You are responsible for all materials, works of authorship (including avatars, images and writings), data (including Data), and information (collectively, “Content”) uploaded, posted, transmitted or stored under Your Account or through Your use of Jirav. You hereby grant Company a non-exclusive, royalty-free license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the Content for purposes of providing Jirav and otherwise performing and exercising Company rights under this Agreement.
- You, not Company, are solely responsible for the Content You and Users submit or provide to Jirav. You agree not to use, nor permit any third party to use, Jirav to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following: (a) illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable content, data, images, information or communications of any kind, including any that would give rise to criminal or civil liability under any local, state, federal or foreign law; (b) Content that would impersonate someone else or falsely represent Your identity or qualifications, or that constitutes a breach of any individual’s privacy; (c) virus, trojan horse, worm or other disruptive or harmful software or data; and (d) any software or Content which is not legally Yours and without permission from the copyright owner or intellectual property rights owner.
- Company reserves the right to monitor the Content, and to remove or disable Content that Company, in its sole discretion, determines to be illegal, harmful, offensive, that creates liability for Company or its service providers, or that is otherwise in violation of this Agreement or Company policies. Company has no obligation to so monitor the Content, however.
- As between the parties and except for the licenses granted by this Agreement, (a) You retain all right, title and interest, including all intellectual property rights, in and to the Data and (b) Company retains all right, title, and interest, including all intellectual property rights, in and to Jirav and all related software and intellectual property. Jirav is and will remain the property of Company and its affiliates.
- Company (and its licensors) retains all rights not expressly granted to you under this Agreement, including Company’s (and its affiliates’) right to sole ownership of the software for Jirav. You do not have any implied rights.
- OTHER COVENANTS, TERMS AND RESTRICTIONS
- You agree not to (and not to allow any User or any third party to): (a) sublicense, distribute, or use Jirav outside of the scope of the license granted to You in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile any software for Jirav or otherwise attempt to discover any source code or trade secrets related to Jirav; (c) rent, lease, sell, assign or otherwise transfer rights in or to Jirav (except that You may allow Users to use Jirav to access Your account as contemplated by this Agreement, to the extent permitted within the permitted limits for Your Account); (d) use, upload, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of Jirav; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with Jirav for any purpose without the express written consent of Company; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Company (or its affiliates) other than in the name of Company (or its affiliates, as the case may be); (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with Jirav or any report or other output; or (h) directly or indirectly use Jirav or any models or output for purposes of developing a product, service or solution that is intended or designed to compete with Jirav.
- You represent, warrant and covenant to Company that: (i) You are of an age of majority (if you are an individual) and You have the power, authority or consent to enter into and perform this Agreement and to grant the rights and licenses granted by this Agreement and to undertake the obligations and liabilities you are accepting under this Agreement; (ii) all information provided by You and Your Users to Company is truthful, accurate and complete; (iii) if You are paying by credit card, You (and any Authorized Administrator listed for the Account) are an authorized signatory of the credit or charge card provided to Company to pay the fees incurred on the Account; (iv) You will comply with all terms and conditions of this Agreement; (v) You have provided and will continue to provide accurate and complete registration information, including your legal name, address and telephone number; and (vi) You own or otherwise control and have sufficient rights, and have provided all notices and obtained all consents necessary, to provide all Data and other Content for use by Company or otherwise in the manner contemplated by this Agreement, and none of the Data or other Content infringes, misappropriates or violates any rights of any third parties.
- If You are a legal entity and You have separately agreed (including by email), You hereby grant Company a non-exclusive, royalty-free license, with rights to sublicense, to use Your name and logo in connection with advertising and marketing of Jirav on the Company’s corporate website and in its marketing and advertising materials. Where you have separately agreed (including by email), Company may also name You on its list of customers.
- PAYMENT AND TAXES
- Except for trial versions licensed during a limited trial period, Company charges a fee for use of Jirav. You agree to pay all fees charged by Company for the use of Jirav under the Account. Billings from Company on Your Account will be done on a monthly or annual basis, as applicable, unless otherwise agreed by Company. All fees incurred are non-refundable and, unless otherwise stated, are in US dollars. All fees and taxes, and any other charges, will be invoiced to the Authorized Administrator and Billing contact on the Account, and billed to the credit card on file for the Account, unless otherwise agreed to in writing in advance. Accounts on annual billing can elect the option to pay their invoice via ACH or Check, with advance approval from Company in writing. If You are paying by credit card, You hereby authorize Company to charge Your credit card. There will be no refunds or credits for partial months of service, upgrades, or unused months.
- Company reserves the right to deactivate Your access to Jirav and to suspend Your Account for failure to pay applicable fees for the Account (by You or by the professional service firm or other person responsible for payment of fees on the Account). You agree to promptly pay Company in the event of any refusal of Your credit card issuer to pay any amount to Company for any reason. You agree to pay all costs of collection, including attorneys’ fees and costs, on any outstanding balance under the Account. In the event You fail to pay any amount when due, Company may immediately suspend or terminate Your access to Jirav.
- Your subscription to Jirav will renew automatically at the then current level, unless You terminate Your subscription pursuant to Section 9 below or Company terminates it. You must cancel Your subscription before it renews in order to avoid incurring and being billed for subscription fees for the renewal term to Your credit card.
- You are responsible for, and will indemnify and hold Company harmless from, payment of all taxes (other than taxes based on Company’s net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the incurring or payment of fees to Company under this Agreement, or from the delivery, license or use of Jirav. You will make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Your sole responsibility, and You agree upon request to provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
- Company may change its fees and its payment policies for Jirav from time to time. The changes to the fees or payment policies are effective upon Your acceptance of those changes. Those policies are incorporated herein by this reference.
- Any amounts not paid when due are subject to a late fee and an interest charge at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
- SERVICE RELATED TERMS
- To register for Jirav, You must complete the registration process by providing Company with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, Your Users, and third party, use of Your access information and accounts. You are solely responsible for any and all activities that occur under Your Account, including any activities of Users under such Account (including Client Users). You must notify Company immediately upon learning of any unauthorized use of Your Account or any other breach of security relating to Jirav. Company (or its affiliate’s) support staff may, from time to time, log-in to Your account in order to maintain or improve service, including to provide assistance to You with technical or billing issues. Company may use Your registration information and Data to provide You with information and advertising and marketing offers and materials.
- Company agrees to arrange to host the Data on its service provider’s cloud, subject to Company’s data retention policies and procedures. Company does not warrant or guarantee that Jirav or the Data will be always available or available at any particular time, or secure or free from errors or defects.
- If You use Jirav on behalf of a third party (including a Client User) or a third party otherwise uses Jirav through Your Account, whether or not such use has been authorized by Company, then You represent and warrant that (a) You are authorized to act on behalf of, and bind under this Agreement, the third party to all obligations, terms and limitations that You have under this Agreement, (b) Company is permitted to share any and all Content with the third party under Your Account, and (c) You will not upload or use the third party’s Content, or disclose it to any other party, without the third party's consent.
- You will not, and will not allow others to, sell, trade or transfer any Account to any other person or entity.
- You agree that Company may send You communications about Jirav and about other products and services. You agree that Company may send these communications and may contact You via email, and by providing them within Jirav.
- PRIVACY AND RIGHTS TO DATA
- You hereby give Company permission to combine information you enter or upload to Jirav into aggregated, non-identifiable (meaning that it does not identify You or a User), anonymous indices, benchmarks, or algorithms to provide ways for You and other users to compare business practices with other users (“benchmarking”), or other automated, aggregated, anonymized analytics processes. Company may access or store information (including Content under Your Account) on computer systems in multiple countries, including outside of the United States to the extent permitted by applicable law.
- TERM AND TERMINATION
This Agreement begins upon Your registration. This Agreement will automatically terminate if You fail to comply with its terms. If You have a free, promotional or trial version of Jirav, this Agreement will automatically continue upon the conclusion of the free, promotional or trial period (and thereafter incur fees) unless You cancel Your Account (using the online Jirav account cancellation form) in advance of the free, promotional, or trial period ending. Additionally, either party may terminate this Agreement at any time for any reason or no reason whatsoever. To terminate this Agreement, You must use the online Jirav account cancellation forms. Without limiting the foregoing, You acknowledge that Company may discontinue all or part of its Jirav service offerings at any time, and may remove, add, or change any features or functionality of Jirav and any related service offering without notice. Company may also suspend Your access to Jirav at any time if You are in breach of this Agreement or if Company suspects You are in breach; to protect Company and its customers from damage or injury; or for any other valid reasons as determined by Company in good faith. In the event of termination or expiration of this Agreement: (a) You will not be entitled to any refund of any fees You previously paid; (b) any outstanding balance for the Account and any other unpaid amounts which relate to Jirav and/or this Agreement will be immediately due and payable in full; (c) all Data and other data and Content will no longer be available to You unless otherwise agreed by Company (and, as a condition to Jirav making available or providing such Data, You must have paid Company for all amounts due and owing under this Agreement); (d) all of the licenses granted to You under this Agreement will terminate; and (e) Company will stop providing Jirav to You and Your Users, and You must cease using Jirav. The definitions and the rights, duties and obligations of the parties that by their nature continue and survive, including Your obligation to pay all fees and amounts owed to Company, shall survive any termination or expiration of this Agreement.
- GOVERNMENT RESTRICTIONS
You may not export or re-export any part of Jirav except in compliance with the United States export control laws and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. government is governed solely by the terms of this Agreement.
- NO WARRANTY
- JIRAV AND THE DATA ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY.
- Company does not warrant that Jirav will meet your needs or requirements or be error-free or always available or available at any particular time or that any errors or defects will be corrected. Company does not warrant or guarantee that Jirav forecasting and other outputs (which depend on your Data) will be accurate and not misleading, or that you will achieve or realize any savings or efficiencies through use of Jirav. You, not Company, are responsible for all financial, accounting, tax or other decisions made and actions taken as a result of Your use of Jirav.
- LIMITATION OF LIABILITY AND INDEMNITY
- IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.
- COMPANY’S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE SUBSCRIPTION FEES, IF ANY, PAID BY YOU TO COMPANY UNDER THIS AGREEMENT DURING THE MOST RECENT 12 MONTH PERIOD. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- You will indemnify and hold harmless Company and its officers, directors, employees and agents (the “Company Indemnified Parties”) from and against any and all liabilities, costs, losses, damages, judgments, expenses (including attorneys’ fees and costs of experts and costs of appeals) arising out of or in connection with any and all of the following: (a) any allegation that any of the Data or other Content infringe, misappropriate or violate any intellectual property right, (b) any violation of this Agreement by You or by Users under Your account, including any breach of any representations or warranties contained herein, (c) Your or Your Users provision of any Content, (d) Your or Your User’s use of Jirav or any Jirav models or output, (e) any activity relating to Your account, (f) Your violation of applicable laws, rules or regulations in connection with Jirav or any Jirav models or output; (g) any failure of You to have all necessary rights and licenses; (h) any representations and warranties made by You concerning any aspect of Jirav or any output to any third party (including to Your Users and Your clients); or (i) violations of Your obligations of confidentiality or privacy to any third party.
- CONFIDENTIALITY AND FEEDBACK
- Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent, except for the purpose of exercising rights under or performing this Agreement, or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will, to the extent practicable, promptly either return or destroy (including delete) all Confidential Information and, upon request, provide written certification of such.
- To the extent you provide Company with any suggestions, information, ideas, or feedback concerning Jirav, its functionality and features, or any model, report or output, including, a report of any errors which you discover while using Jirav or any related documentation, or any suggestions for or relating to any models or output (“Feedback”), such Feedback will be the property of Company. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Company and agree to assist Company in perfecting and enforcing these rights.
You may not transfer or assign Your rights under this Agreement, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of the foregoing is void. Company may freely transfer or assign its rights under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
Any dispute arising out of this Agreement will be resolved by binding arbitration under the rules of the Judicial Arbitration and Mediation Services in San Francisco, California (“JAMS”). A single arbitrator will be selected according to JAMS rules within 30 days of submission of the dispute to JAMS. Each party will bear its own attorneys’ fees, and the losing party will bear the cost of the arbitration, including the arbitrator’s fee. The arbitration award may be enforced in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, the parties agree that Company may seek a temporary or permanent injunction (or other equitable relief), and file the necessary underlying lawsuit, in any court having jurisdiction over the parties anywhere in the world as necessary to protect Company’s intellectual property and technology, including Jirav and the related software.
- LIMITATION ON TIME TO FILE CLAIMS
Any cause of action or claim You may have arising out of or relating to this Agreement or Jirav must be commenced within one year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
The laws of the State of California govern all matters arising out of this Agreement, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. This Agreement is the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings between the parties with respect to such subject matter, including without limitation, the terms of any purchase orders and any other communications or advertising from You. If any provision of this Agreement is held invalid by a court or arbitrator of competent jurisdiction, that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will continue in full force and effect. Company has no liability for any failure of performance or equipment due to causes beyond its reasonable control, including the following: acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars or acts of terrorism; unavailability of rights-of-way or materials; strikes, lock-outs, work stoppages, or other labor difficulties; or power outages or failure of the Internet or any telecommunications, hosting or service provider. This Agreement may be modified only by a written agreement that is signed by authorized representatives of both parties and identifies itself as an amendment to this Agreement. No term or provision hereof will be considered waived by Company, and no breach excused, unless the waiver or consent is in writing signed by an officer on behalf of the Company. No consent by Company to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such section.
- CONTACT INFORMATION
If you have any questions about this Agreement, or if you want to contact Company for any reason, please direct all correspondence to: Jirav, Inc., 25 Taylor St. #724, San Francisco, CA 94102 or e-mail firstname.lastname@example.org.
“Jirav” is a trademark and/or registered trademark of Jirav, Inc. or its affiliates in the United States and/or various other jurisdictions.