End User License Agreement
THIS IS AN AGREEMENT (“Agreement”) BETWEEN YOU AND JB INTERNATIONAL LLC (“JBI” “we”, “us” or “our”) THAT GOVERNS YOUR RIGHT TO ACCESS AND USE TRILBY SUITE PRODUCTS AND SERVICES (THE “Solution”). PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT REQUIRES YOU TO ARBITRATE DISPUTES, WAIVES YOUR RIGHT TO A JURY TRIAL, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE CLICK YOUR ASSENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CLICK YOUR ASSENT TO THIS AGREEMENT AND YOU MAY NOT USE THE SOLUTION.
This Agreement governs your use of (a) JBI websites (including the site located at https://install.trilbysuite.com/eula) (each, a “Site”), (b) software relating to the Solution (“Software”), including software that may be downloaded to your mobile device (and any updates thereto) (an “App”),and (c) services available through the Site, Software and App (“Services”), all of which are deemed part of the Solution.
1. ACCESS TO SOLUTION. You will need to register and create an account to access the Solution (an “Account”). Your Account is intended for use only by you. You are not allowed to disclose your account credentials to third parties or permit others to use your usernames/passwords. You are responsible for maintaining the confidentiality of your usernames and passwords, and for all activities that occur under your Account. You must notify us immediately of any breach of security or unauthorized use of your Account. You are responsible for furnishing, at your expense, any computer, networking, telecommunications and other equipment necessary for you to access the Internet and the Solution. We will not be responsible for equipment or network outages or problems relating to your infrastructure or connectivity.
2. LICENSE. Subject to the terms of this Agreement, JBI grants you a limited, non-exclusive, non-transferable license to access and use the Solution only in accordance with and for the purposes set forth in this Agreement. Except as otherwise specifically provided herein, redistribution, retransmission, modification, framing, republication or commercial exploitation of the Solution or its contents are expressly prohibited without our written consent. You agree you will impose only that load on our servers that is necessary for your use of the Solution in the ordinary course as contemplated in this Agreement. You agree to use the Solution in accordance with any user manual or other documentation provided to you in connection with the Solution (“Documentation”), and you agree to abide by any notices and limitations set forth in such Documentation. You agree to use the Solution only as permitted under applicable law.
3. RESTRICTIONS. You agree not to, and you will not permit others to, (a) license, sell, lease, assign, distribute, host, disclose, or otherwise commercially exploit the Solution or its output, except as permitted herein, or make the Solution available to any third party; (b) use the Solution or its data in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (c) copy or use the Solution for any illicit, improper or unlawful purpose; (d) use the Solution to send or store infringing or unlawful material; (e) access the Solution for the purpose of building a competitive product or service or copying its features, content or user interface, including by screen scraping; (f) attempt to bypass the security infrastructure used by the Solution; (g) infect or introduce any spyware or any other form malicious software into the Solution; (h) remove or alter any trademark, logo, copyright or other proprietary notices or legends in the Solution; (i) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Solution (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact us and give us the opportunity to create such changes as are needed for interoperability purposes); or (j) access or use the Solution by means of any interfacing program except as authorized in writing by JBI.
4. AVAILABILITY AND UPDATES. While JBI uses commercially reasonable efforts to cause the Solution to be continually accessible (except for scheduled maintenance and required repairs and due to force majeure events), in no event will we have any responsibility for your inability to access the Solution for any reason, including due to issues arising from the hardware, systems, environment or networks of you or third parties. We may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Solution (“Updates”). Updates may be automatically installed without providing any additional notice or receiving any additional consent from you; provided that if the Solution provides functionality that permits automatic Updates to be turned off then Updates may be delayed using such functionality. You acknowledge that you may be required to install certain Updates in order to continue to use the Solution following a change to the Solution. If you do not want Updates, your remedy is to terminate this Agreement or stop using the affected parts of the Solution.
5. DATA PRIVACY. Information submitted or entered by you into the Solution (“User Data”) will be used in accordance with applicable law and any Privacy Policy presented via the applicable Solution or posted on the JBI Site at https://www.trilbysuite.com/privacypolicy. JBI shall process your User Data via the Solution solely for the benefit of the university, institution or organization with which you are affiliated who is using the Solution to collect and process your User Data (“Affiliated Institution”), and JBI shall not directly access User Data except where required or authorized by law. You acknowledge and consent to such sharing and use. You represent and warrant that (a) you have proper right and authorization to provide, distribute and use your User Data and to authorize us and Affiliated Institutions to use your User Data as necessary to operate the Solution; and (b) your User Data does not violate any applicable law or regulation and is not infringing, illegal or otherwise improper. JBI will assist law-enforcement officials investigating illegal activity or violations of this Agreement. We reserve the right to disclose without notice to you any information in our possession if we believe we are required to do so by law, to protect or defend our rights or property, or to respond to an emergency. In the event JBI or its assets are sold, merged or otherwise involved in a corporate transaction, you acknowledge that we may transfer your User Data to our successor without your consent.
6. DATA SECURITY. JBI will use commercially reasonable security procedures that are designed to maintain an industry-standard level of security and prevent unauthorized access to, modification of, and/or disclosure of User Data in the possession or control of JBI. While JBI uses commercially reasonable practices to ensure that User Data is used and disclosed in accordance with applicable privacy practices and law, we cannot warrant or guarantee that User Data will always remain secure due to transmission errors, unsecured third party networks, outside events, third party hacking or other causes. JBI will comply with all privacy laws and make any legally required disclosures regarding breaches of the security, confidentiality, or integrity of personal User Data consistent with its ability to determine the scope of a breach and its obligations to law enforcement. You understand and agree that User Data provided in connection with the Solution may be transferred across national boundaries and may be stored and processed in any of the countries in which JBI or its service providers maintain operations, including, without limitation, the United States of America and Canada, and you consent to the transfer of your User Data to such jurisdictions.
7. OWNERSHIP. The Solution and its output (excluding your User Data), and all worldwide copyrights, trade secrets, and other intellectual property rights therein, are the exclusive property of JBI and its licensors, and you agree not to use or disclose such items except as provided herein. JBI and its licensors reserve all rights in and to the Solution not expressly granted to you in this Agreement. The Solution is licensed to you, not sold, under this Agreement. There are no implied licenses in this Agreement. You hereby grant us an unrestricted, transferable license to use any suggestions or feedback provided by you with respect to the Solution (“Feedback”). JBI may use, copy, modify, publish, or redistribute such Feedback for any purpose and in any way without any compensation or obligation to you.
8. TERMINATION. This Agreement is effective until expiration of any associated subscription term for which fees have been paid by you or an Affiliated Institution, unless terminated earlier as provided herein. You may also terminate this Agreement at any time by providing written notice to us or by terminating your Account via the Solution. Without prejudice to any other rights or remedies JBI may have at law or in equity, JBI may immediately terminate this Agreement if you fail to comply with any term or condition of this Agreement. Upon termination of this Agreement, you shall immediately discontinue use of the Solution and any related Documentation or materials provided to you by us in your possession or control, however the terms of Sections 3, and 5 through 18 (inclusive) will remain in effect after any such termination. Following termination of this Agreement, JBI will retain your User Data for such period as required under any agreement with an Affiliated Institution, as reasonably necessary for the conduct of the operations of JBI or the Solution (including in routine system backups), or as permitted by privacy law; provided that during such retention period User Data shall be used only for purposes consistent with this Agreement, and following such retention period JBI will delete User Data in compliance with applicable privacy laws and industry standards for secure data disposal.
9. WARRANTY DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JBI PROVIDES THE SOLUTION ON AN “AS-IS” AND “AS AVAILABLE” BASIS “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JBI DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. JBI DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SOLUTION. JBI MAKES NO WARRANTY THAT THE SOLUTION WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. USE OF THE SOLUTION IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND JBI DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR COMPUTER, SYSTEM OR MOBILE DEVICE, RESULTING FROM YOUR USE OF THE SOLUTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING MAY NOT APPLY TO YOU. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS FROM THE DATE OF FIRST ACCESS TO THE SOLUTION. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
10. LIMITATION OF LIABILITY. Nothing in this Agreement including this section shall attempt to exclude liability that cannot be excluded under applicable law. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) JBI WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SOLUTION, EVEN IF JBI KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) JBI’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SOLUTION, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO JBI IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. JBI DISCLAIMS ALL LIABILITY OF ANY KIND ARISING FROM JBI’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER RIGHTS, SO THE FOREGOING PROVISIONS OF THIS AGREEMENT MAY NOT APPLY TO YOU.
11. INDEMNIFICATION. To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless JBI and its affiliates and representatives from any third party claims relating to: (1) your breach of this Agreement or of your obligations under this Agreement; (2) your use of or misuse of or inability to use the Solution; (3) your violation of any applicable law or regulation or of any rights of another person or entity; or (4) any liability disclaimed in this Agreement. You agree to hold JBI and our affiliates and representatives harmless from any losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) incurred in connection with the above claims. You agree not to settle any such claim or incur any liability or admission of guilt on our behalf without our consent. We reserve the right, at our expense, to assume the defense and control of any matter subject to indemnification by you. THE FOREGOING INDEMNIFICATION DOES NOT APPLY TO THE EXTENT OF JBI’S OWN GROSS NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.
12. FOR U.S. GOVERNMENT END USERS. If you are directly or indirectly acquiring the Solution on behalf of the U.S. Government, the software object code and source code that is part of the Solution is a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, developed at private expense and containing confidential information and trade secrets of JBI and its licenses, and is subject to “Restricted Rights” as the term is defined in the U.S. Federal Acquisition Regulations. Client agrees, consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
13. EXPORT COMPLIANCE. The Solution and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Solution and related technology, as may be required.
14. GOVERNING LAW & ARBITRATION. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH JBI AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. To the fullest extent permitted by law, this Agreement, and any claim, dispute, action, cause of action, issue, or request for relief relating to this Agreement or the Solution, will be governed by the laws of Indiana, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. To the fullest extent permitted by law, any dispute or claim relating to this Agreement or the Solution or User Data will be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court (except that you may assert claims in small claims court if your claims qualify, and you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights). The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of these procedures, shall be governed by the Federal Arbitration Act and resolved by the arbitrator. TO THE FULLEST EXTENT PERMITTED BY LAW WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. If for any reason a claim proceeds in court (other than small claims court) rather than in arbitration we each waive any right to a jury trial and irrevocably consent to the exclusive jurisdiction of the courts located in Indiana in connection with any such action.
15. ASSIGNMENT. Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment shall be void and without effect. JBI may assign, delegate or transfer its rights and obligations under this Agreement to another party that has the appropriate means for fulfilling such rights or obligations without prior written notice to or consent of you. Subject to the foregoing, this Agreement shall bind each party and its permitted successors and assigns.
16. NOTICES. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, transmitted via e-mail, or mailed by certified mail (postage prepaid, return receipt requested), and addressed (a) to us at query@jb.international or 724 S Meadowbrook Dr, Bloomington, IN 47401; or (b) to you using the contact information that you have supplied to us in connection with your Account or use of the Solution. In addition, we may provide notice to you electronically via the Solution – please check periodically for notices.
17. SEVERABILITY AND WAIVER. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by JBI will be effective only if in writing. Any waiver or failure by JBI to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18. GENERAL. JBI will have no responsibility to provide maintenance or support services with respect to the Solution except as JBI otherwise agrees in writing pursuant to a separate agreement. The parties are independent contractors. This Agreement shall not cause the parties to be principal and agent, partners, joint venturers, or employer and employee. You acknowledge that the Solution contains valuable trade secrets and proprietary information of JBI, that any actual or threatened breach of Section 2 or 3 of this Agreement will constitute immediate, irreparable harm to JBI for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. No amendment to this Agreement will be valid unless it is in writing signed by the parties. This Agreement and its incorporated documents constitutes the entire, full and complete agreement between the parties concerning the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and this Agreement prevails over any conflicting or additional terms of any quote, order, purchase order, acknowledgment, or other communication between the parties relating to its subject matter.