Terms and Conditions
The following (the “Terms”) are the terms and conditions governing the relationship between Joinedapp, Inc. (“Company”), and the customer (the “Customer”) set forth in the service order between Company and customer (the “Service Order”). These Terms are incorporated within, and form an integral part of the Service Order (collectively, the “Agreement”). In the event of a conflict between the express terms of the Service Order and these Terms, the Service Order will control.
1. Definitions and Construction.
Capitalized terms in these Terms have the meanings indicated in Section 12 unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In these Terms, unless a clear contrary intention appears (a) ”Section” refers to sections of these Terms; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding that term, and (c) any reference to a consent, determination or other exercise of discretion by Company, unless expressly provided to the contrary, means a determination or exercise of discretion in Company’s sole and absolute discretion.
2. Hosted Services; Software.
2.1 Company will make the Hosted Services available to Customer and its Users pursuant to the Agreement during the Term. Customer agrees that its purchases under the Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features. Customer will be responsible for Users’ compliance with the Agreement.
2.2 Customer will not: (a) sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users for Customer’s internal purposes; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Services for any purpose including discovering individual Customer Data or re-identifying anonymous data; (c) access or use the Hosted Services in order to build a similar or competitive product or Hosted Service; (d) disclose any review of the Hosted Service to any third party without Company’s prior written approval; or (e) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated in these Terms, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including electronic, mechanical, photocopying, recording, or other means. Customer will make every reasonable effort to prevent unauthorized third parties from accessing the Hosted Services, and notify Company promptly of any such unauthorized access or use.
2.3 Hosted Services may require or allow Users to download software from Company or its licensors onto Users’ smartphone, tablet, computer or other device (“Software”). Company grants to Customer and its Users a non-exclusive, limited license to use Software solely for the purpose stated by Company at the time Software is made available to Users. If an end user license agreement is provided with Software, Customer’s and the Users’ use of that Software is subject to the terms of that license agreement. From time to time, Company may provide Company and Users with updates or modifications to Software. Customer understands that Company’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Hosted Services may vary depending on each User’s computer and other equipment. Company understands that certain updates and modifications may be required in order to continue use the Software and Hosted Services.
2.4 Neither Customer nor any User may sub-license, or charge others to use or access Software. Neither Customer nor any User may translate, reverse-engineer, reverse-compile or decompile, disassemble or make derivative works from Software. Neither Customer nor any User may modify Software or use it in any way not expressly authorized in writing by Company.
3.1 As between the parties, Company will own and retain all right, title and interest in and to the Hosted Services and Software, including all intellectual property rights. No rights are granted to Customer under the Agreement other than as expressly set forth in the Agreement. As between the parties, Customer will own all right, title and interest in and to any Customer Data. Customer grants to Company the non-exclusive, worldwide right to copy, adapt, transmit, communicate, display, distribute and create compilations and derivative works of the Customer Data for the purpose of providing the Hosted Services and to improve or enhance the Hosted Services. This license includes use of Customer Data to compile, use and disclose anonymous, aggregated statistics that include Customer Data, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer’s Users. Customer will be solely responsible for ensuring that Customer has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where other customers or users are located. In addition, Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.
3.2 Customer understands that the Hosted Services are part of a proprietary Company system, using artificial intelligence which will be trained by Customer Data and Customer hereby grants Company a limited, royalty-free, non-exclusive, worldwide, license to use the Customer Data during the Term for the purpose of creating Training Data. Company will own any Training Data created by Company pursuant to the preceding sentence. The license granted pursuant to the preceding sentence will survive the termination or expiration of the Agreement.
3.3 Company will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Services.
3.4 The parties understand and agree that monetary damages will not be sufficient to avoid or compensate for Customer’s use of the Hosted Services or Software other than as authorized under the Agreement, and that injunctive relief would be appropriate to prevent any such actual or threatened use or disclosure.
4. Billing And Payment.
4.1 Except as expressly set forth in the Service Order, Company my change its fees for the Hosted Services in its discretion by prior notice to Customer. If the Service Order expressly provides for fixed fees, those fees will be fixed only during the period specified. Implementation Fees will be due on execution of the Agreement. Company will invoice Customer for Revenue-Based Fees monthly during the Term. Company’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all those taxes, levies, or duties, even if the amounts are not listed by Company.
4.2 Payment for invoices is due within 15 days of Customer’s receipt of the applicable invoice. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. For clarity, Customer remains obligated to pay Company for all fees when due, regardless of any dispute. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer’s ability to access the Hosted Service until payment is made, at Company’s discretion. Customer will reimburse Company for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Company in the collection of overdue amounts.
4.3 On reasonable advance notice, Company will permit Customer and/or its designated representatives, during normal business hours and at Customer’s sole cost and expense, to audit Company’s books and records to confirm the accuracy of Company’s calculations of fees and expenses under the Agreement provided that Customer will not exercise its rights under this Section 4.3 (a) more than once in any 12-month period, or (b) more than once as to any period audited. If an audit under this Section 4.3 reveals an overpayment by Customer, Company will make all payments required to eliminate the overpayment within 30 days after Customer’s demand by notice. All Company information inspected by Customer or its designees under this Section 4.3 will be deemed Confidential Information of Company.
During the Term, Company will provide Customer reasonable assistance. Company will use commercially reasonable efforts to correct at no additional charge any reproducible errors reported by Customer. Company will have no obligation to provide any modifications to the Hosted Service.
6. Warranties; Limitation of Liability.
6.1 Customer’s Limited Warranties. Customer warrants that (a) the Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, (b) neither the execution and delivery of the Agreement nor either party’s performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any domestic or foreign, federal, state or local statute, law (including principles of common law), ordinance, rule, policy, guideline, permit, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement of any governmental body (“Legal Requirement”) to which Customer may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of the Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Customer.
6.2 Company’s Limited Warranties. Company warrants that (a) the Agreement constitutes the legal, valid and binding obligation of Company, enforceable against the Company in accordance with its terms, (b) neither the execution and delivery of the Agreement nor either party’s performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any Legal Requirement to which Company may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of the Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Company, (c) the Hosted Services will operate substantially as described in the applicable Documentation, and (d) any support services provided pursuant to Section 5 will be provided in a workmanlike manner consistent with industry standards.
6.3 Exclusive Remedy. Customer’s sole and exclusive remedy, and Company’s entire liability, for any breach by Company of its warranties under the Agreement will be, at Company’s discretion, either (a) to correct the error that caused the breach, or (b) as applicable, (i) to provide Hosted Services that conform to the warranties, or (ii) to re-perform any support services in a manner conforming to the warranties. If Company is unable, using commercially reasonable efforts, to correct the error or otherwise cure the breach by providing conforming Hosted Services or re-performing support services, as applicable, then Company may terminate the Agreement and return to Customer the fees paid for the specific non-conforming Hosted Services or support services.
6.4 Limited Warranty. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE HOSTED SERVICES, ANY SOFTWARE, OR ANY SUPPORT SERVICES TO BE SUPPLIED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY HOSTED SERVICES OR SOFTWARE, OR THAT USE OF ANY HOSTED SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE HOSTED SERVICES OR SOFTWARE WILL BE CORRECTED, OR THAT ANY HOSTED SERVICES’ OR SOFTWARE’S FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS.
6.5 Limitation of Liability. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY BY WAY OF FEES FOR THE 12-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY.
6.6 No Consequential Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. FOR PURPOSES OF CLARIFICATION ONLY, THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 6.6 IS NOT INTENDED TO AND WILL NOT LIMIT A PARTY’S DUTY TO INDEMNIFY AS SET FORTH IN SECTION 7.
7.1 Indemnification by Company.
(a) Company will defend, indemnify and hold Customer harmless against any “Claims” made or brought against Customer by a third party alleging that (i) the use of the Hosted Service as contemplated under the Agreement infringes the copyrights, trademarks or trade secrets of that third party, or (ii) Company failed to comply with applicable Legal Requirements in its performance of the Agreement; provided, that Customer (I) promptly gives written notice of the Claim to Company; (II) gives Company control of the defense and settlement of the Claim (provided that Customer may participate in the defense at its own expense and that Company may not settle any Claim in a manner that admits liability on behalf of Customer); and (III) provides to Company, at Company’s expense, reasonable assistance in connection with the defense and settlement of the Claim.
(b) Company may, at its sole option and expense (i) procure for Customer the right to continue using the Hosted Service under the Agreement; or (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, Company may terminate the Agreement and refund to Customer any prepaid fees (but excluding any Implementation Fee). This Section 7.1 represents Company’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.
(c) Company will have no liability for any Claim under Section 7.1(a) to the extent liability is the result of (i) modifications to the Hosted Service by anyone other than Company or its agents (provided that Company will not be liable if Company or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the use or combination of the Hosted Service with any other item not provided by Company where in the absence of that use or combination, the Hosted Service alone would not have given rise to the Claim; or (iii) Customer’s continued use of an infringing version of the Hosted Service when the then current version of the Hosted Service has been modified to be non-infringing.
7.2 Indemnification by Customer. Customer will defend, indemnify and hold Company harmless against any Claims made or brought against Company by a third party based on or arising under (a) any claim the Customer Data or Company’s transmission or hosting thereof infringes or violates the rights of that third party; (b) any claim Customer’s use of the Hosted Service in violation of the Agreement infringes or violates the rights of that third party (including any liability to the extent resulting from the items set forth in Section 7.1(c)(i) – (iii)); (c) the advertising, promotion or marketing of Customer product or service or the services or products that Customer sells or delivers to any User; or (d) any claim Customer failed to comply with applicable Legal Requirements in its performance of the Agreement; provided, that Company (x) promptly gives written notice of the Claim to Customer; (y) gives Customer control of the defense and settlement of the Claim (provided that Company may participate in the defense at its own expense and that Customer may not settle any Claim in a manner that admits liability on behalf of Company); and (z) provides to Customer, at Customer’s expense, reasonable assistance in connection with the defense and settlement of the Claim.
8. Term and Termination.
8.1 The term of the Agreement (the “Term”) will begin on the Effective Date and will remain in effect until terminated in accordance with Section 8.2.
8.2 Either party may terminate the Agreement at any time on notice to the other party. In the event of any termination, Customer will be liable for any payments then due under the Agreement and for services completed in accordance with the Agreement on or before the date of termination.
8.3 At Customer’s request, within 30 days of termination of the Agreement, provided Customer is not in breach of the Agreement, Company will make available to Customer a file of the Customer Data then in its possession for a reasonable fee. Customer agrees and acknowledges that Company has no obligation to retain Customer Data and that Customer Data may be irretrievably deleted after 30 days following the termination of the Agreement or if Customer’s account is 30 days or more past due. The following provisions will survive any termination of the Agreement: Sections 1, 2.2, 2.3, 2.3, 3, 4, and 6 – 11.
9. Confidentiality and Privacy.
9.1 Each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of the Agreement. Neither party will disclose to third parties the other party's Confidential Information without the prior written consent of the other party. A party may disclose Confidential Information to that party’s employees or professional advisors (e.g., accountants, attorneys and financial advisors), affiliates and contractors who have a need to know that Confidential Information and receive it under a duty of confidentiality substantially similar to this Section 9.1. The parties may disclose Confidential Information if required by law so long as the party required to disclose takes reasonable steps available to narrow the required disclosure and obtain protective treatment and notifies the other party, to the extent permitted by applicable law, before disclosure in sufficient time to enable that party to seek protective treatment.
10. Customer’s Responsibilities.
Customer will provide the requirements set forth on Exhibit B. Customer will comply with all applicable Legal Requirements in connection with its use of the Hosted Service, including those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Company controls and operates the Hosted Services. Customer will ensure that any use of the Hosted Services by Customer’s Users is in accordance with these Terms. It is the responsibility of Customer to provide, prepare and maintain a system environment in which the Software is to be installed and from which the Hosted Service are to be accessed, as applicable, in conformance with the Documentation provided by Company from time to time. Except as set forth on Exhibit B, Company is not responsible for the set-up and installation of Software. If Customer wishes Company to provide set-up and installation services and Company wishes to provide those services, the parties may enter into a separate agreement to govern those services.
11. General Provisions.
11.1 Either party may include the other’s name and logo in Customer or vendor lists.
11.2 The validity and enforceability of the Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to the Agreement, or the negotiation, execution or performance of the Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with the Agreement or as an inducement to enter into the Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of California, including its statutes of limitations, but without regard for conflicts of law principles. Exclusive venue for the resolution of any dispute between the parties relating to or arising from the Agreement will be in the state and federal courts for Santa Clara County, California and the parties hereby submit themselves to the personal jurisdiction of those courts and agree to the service of process by any means constituting notice under Section 11.4 or in such other manner as may be lawful, and that service in such manner will constitute valid and sufficient service of process.. In the event of any litigation of any controversy or dispute arising out of or in connection with the Agreement, its interpretation, its performance, or the like, the prevailing party will be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute.
11.3 Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (a) either party may assign the Agreement in its entirety to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity; and (b) Company may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate or partner. Any attempted assignment in breach of this section will be void. The Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. The Agreement is entered into by the parties for the exclusive benefit of the parties and their successors and permitted assignees. The Agreement is expressly not intended for the benefit of any other person. No third party will have any rights under the Agreement. The Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions, whether written or oral, and will not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of the Agreement. The Agreement may be amended only by the mutual written consent of the parties.
11.4 If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then those provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Company and Customer as a result of the Agreement or use of the Hosted Services. Company reserves the right to use third-party providers in the provision of the Hosted Services and Company will be responsible for the acts or omissions of those third parties. Neither party will be liable to the other for any delay or failure to perform under the Agreement (excluding payment obligations) due to circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving that party’s employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within that party’s possession or reasonable control, and denial of service attacks. Any notice required or permitted under the Agreement will be given in writing by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e mail, , in each case addressed to the party to which the notice is provided at the address or e mail address indicated in the Service Order or at another address or e mail address designated by the party by notice from time to time to the other party. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e mail address. The actual receipt by the addressee of any written notice will constitute notice under this Section 11.4 notwithstanding the failure to have complied with any provisions of this Section 11.4. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of that right or provision unless acknowledged and agreed to by that party in writing. Any rights not expressly granted in the Agreement are reserved by Company.
“Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.
“Confidential Information” means all information disclosed to a party by the other party during the Term, whether in writing, electronically or orally (including third-party information held by the disclosing party under a duty of confidentiality), and that is either designated by the disclosing party as confidential in writing or is of a nature that a reasonable person would understand to be confidential. Confidential Information does not include information (a) known to the receiving party before its receipt from the disclosing party without a limitation or obligation of confidentiality, (b) independently developed by the receiving party without use of any Confidential Information; (c) in the public domain at the time of disclosure or otherwise, other than as a result of disclosure by the receiving party; or (d) received from a third party with a legal or contractual right to disclose that information or data to the receiving party, provided that third party had no duty to keep that information confidential and that the receiving party did not (and was not required to) agree to keep that information confidential.
“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means any data, information or other materials submitted by Customer to the Hosted Service.
“Dispute Period” means 15 days from receipt of invoice.
“Documentation” means Company’s then current on-line help, guides, and manuals published by Company and made generally available by Company for the Hosted Services. Documentation will include any updated Documentation that Company provides.
“Hosted Services” means set forth on Exhibit B, including updates to those services from time to time.
“Joinedapp Driven Revenue” means gross revenue from transactions closed through the Hosted Service when actually earned and collected, less any reasonable credits, refunds or rebates given by Customer.
“Training Data” means improvements in semantic understanding of the Hosted Service (including vocabulary and natural language understanding) resulting from the processing of Customer Data from which individual User identities have been removed and that is not linked or reasonably linkable to any User or household.
“Users” means (a) customers and potential customers of Customer who use the Hosted Service, and (b) individuals who are employees or service providers of Customer and who are authorized by Customer to use the Hosted Services for Customer’s internal purposes