Version effective for customers with initial agreement dates between: November 1, 2021 – January 14, 2022
Please read these Enterprise Terms & Conditions (“Terms”) carefully before using the Services offered by JOON ENTERPRISES, PBC. (“JOON”). By executing a JOON proposal or other ordering document which references these Terms, or signing up for the Services via JOON’s standard online process (each, an “Order”), you or the entity you represent (“Customer”) agree to be bound by and a party to these Terms (together with all Orders, the “Agreement”) to the exclusion of all other terms. You represent and warrant that you are authorized to bind Customer. If the Terms of this Agreement are considered an offer, acceptance is expressly limited to such terms.
This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the effective date of the applicable Order.
1. Orders; Access to the Service.
Upon online submission and acceptance or mutual execution (as applicable), each Order shall be incorporated into and form a part of the Agreement. For each Order, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order) JOON grants Customer a nonexclusive, limited, nonsublicensable, nontransferable right and license to internally access and use the JOON product(s) and/or service(s) specified in such Order (collectively, the “Service,” or “Services”) during the applicable Subscription Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with JOON’s applicable official user documentation for such Service (the “Documentation”).
Upon payment of any applicable fees set forth in each Order, JOON agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is described in such Order (“Implementation Assistance”). If JOON provides Implementation Assistance in excess of any agreed-upon hours estimate, or if JOON otherwise provides additional services beyond those agreed in an Order, Customer will pay JOON at its then-current hourly rates for consultation.
3. Service Updates.
From time to time, JOON may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that JOON shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that JOON may cease supporting old versions or releases of the Services at any time in its sole discretion. JOON shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
4. Ownership; Feedback.
As between the parties, JOON retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by JOON for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to JOON with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for JOON notwithstanding anything else. JOON acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to JOON a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair JOON’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
5. Fees; Payment.
Customer shall pay JOON fees for the Service as set forth in the pricing terms, fees, and subscription options agreed upon during the Order (“Pricing Terms”). JOON may modify the Pricing Terms for the next Subscription Period (as defined in Section 10) at any time upon forty-five (45) days prior written notice to Customer. If Customer does not agree with the modified Pricing Terms, it may terminate this Agreement upon thirty (30) days’ notice as set forth in Section 10a. below.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any JOON product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) bypass any measures JOON may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service), whether through use of manual or automated means; or (x) use the Service in a manner that violates applicable laws or regulations. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
7. HIPAA Disclaimer.
Customer acknowledges that JOON is not a business associate or subcontractor (as those terms are defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”)) and that the Services are not HIPAA compliant. Customer must not submit, collect or use any “protected health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Services. Notwithstanding anything to the contrary, Customer agrees that JOON has, and shall have, no liability under this Agreement or otherwise (under any legal or equitable theory of liability, including tort or negligence) in connection with any PHI received from Customer or Users.
8. Customer Data.
9. Third Party Services.
Customer acknowledges and agrees that the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by JOON. JOON is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. JOON does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
10. Term; Termination.
a. The term of this Agreement shall commence on the date of the first Order and continue for the subscription period set forth in such Order (the “Subscription Period”). The Subscription Period will automatically renew for additional Subscription Periods of equal length, unless either party gives the other thirty (30) days’ notice of its intent not to renew. Either party may also terminate upon thirty (30) days’ notice at any time, for any reason or for no reason.
b. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within ten (10) days of receipt of such notice. Without limiting the foregoing, JOON may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with JOON’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) JOON shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, JOON shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) JOON shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within ten (10) days of receipt of such notice.
c. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of JOON as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of JOON do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (I) not created or provided by JOON (including without limitation any Customer Data), (II) made in whole or in part in accordance to Customer specifications, (III) combined with other products, processes or materials not provided by JOON (where the alleged Losses arise from or relate to such combination), (IV) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (V) Customer’s use of the Service is not strictly in accordance herewith.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
13. Limitation of Liability.
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR FOR CUSTOMER’S OBLIGATIONS UNDER SECTION 10(b) (“TERMINATION”) OR BREACH OF SECTION 7 (“HIPAA DISCLAIMER”), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO JOON HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and JOON with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and JOON with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to (i) for JOON: 6360 Wilshire Blvd. Suite 100 Los Angeles, CA 90048, and (ii) for Customer: the address provided by Customer on the Order. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (a) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (b) JOON may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.