JOON Enterprise Terms & Conditions

Version effective beginning of July 1, 2023

These Customer Terms and Conditions are entered into by and between JOON ENTERPRISES, PBC. (“JOON”) and the Customer identified in the applicable Order. By executing a JOON proposal or other ordering document which references these Terms, or completing JOON’s standard online ordering 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, this “Agreement”) to the exclusion of all other terms. 

1. DEFINITIONS

1.1 “Activation Email” means an email sent by JOON on behalf of Customer to Benefits Recipients that reflects their eligibility to participate in a Benefits Program.

1.2 “Administrative User” means a Customer employee or authorized consultant who, with sufficient permissions, accesses the JOON Platform for the purposes of provisioning and managing benefits administration and reimbursements for Benefits Recipients, including paying invoices for the Services. 

1.3 “Benefits Program” means the bundle of benefits that Customers make available to Benefits Recipients, and which Benefits Recipients request and receive through the JOON Platform.

1.4 “Benefits Recipient” means a Customer employee or other individual who is eligible to create a JOON Account and participate in a Benefits Program.

1.5 “Benefits Services” means the services provided by JOON to Benefits Recipients via the JOON Platform, which include, among other things, the following: benefits expense and reimbursement management for Benefits Recipients and Dependents, and benefits provisioning and management for Administrative Users. 

1.6 “Customer Data” means all information and data provided directly by Customer or collected directly from Benefits Recipients by JOON or its third-party service providers via the JOON Platform, including information provided by Customer for the purpose of linking a Benefit Recipient’s JOON Account with Customer, which includes the following information: (a) contact information (first name, last name and work email address); and (b) relevant employee details (unique employee identification number, eligibility start date, and country of location when Benefits Services are offered across multiple countries).

1.7 “Data” means, collectively, Customer Data and Usage Data.

1.8 “Eligible Expenses” means reimbursement-eligible expenses incurred by Benefits Recipients in accordance with Benefits Program selected by Customer. 

1.9 “Engaged Benefits Recipient” means a Benefits Recipient who has received one or more benefits from the Benefits Program s in the last three months during a Subscription Period.

1.10 “JOON Account” means an account created by an Administrative User or Benefits Recipient on the JOON Platform that is linked with Customer. 

1.11 “JOON Platform” means JOON’s proprietary online technology platform, through which JOON provides Benefits Services to Benefits Recipients and the Services to Customer.

1.12 “Restricted Benefits Recipient Data” means certain transactional Usage Data and Customer Data specifically related to Benefits Recipients’ activity and conduct that fall outside of the scope of the Services, such as purchase data for expenses that are deemed ineligible to qualify for Eligible Expenses. 

1.13 “Services” means the services described in an Order. 

1.14 “Stripe” means Stripe, Inc.

1.15 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.

1.16 “Usage Data” means data and other information arising from the use of the JOON Platform, which may include, among other things, count of Benefits Recipients, count of Engaged Benefits Recipients, count of Benefits Recipients who requested a reimbursement, average reimbursement request and benefit interests among Benefits Recipients.

2. JOON’S RESPONSIBILITIES

2.1 Services. During the Subscription Period, JOON will perform the Services for Customer. 

2.2 Platform Availability; Benefits Services. During the Subscription Period, JOON will: (a) make available applicable portions of the JOON Platform to Benefits Recipient and Administrative Users who have valid JOON Accounts; and (b) provide the Benefits Services to Benefits Recipients.

2.3 Future Products and Services. From time to time, JOON may make additional products and services, or additional features and functionality of existing products and services, available to its customers, including Customer. Such additional products and services, or such additional features and functionality, may be governed by additional terms and conditions, which JOON will provide to Customer at such time. 

2.4 Requested Modifications to the Order. From time to time, Customer may request that JOON modify the Services provided to Customer under the then-current Order. Potential modifications include, but are not limited to, any changes to the following: the countries of coverage for Benefits Recipients, number of Benefits Recipients, and the quantity of and settings for Benefits Programs. Customer acknowledges that any requested modifications to its then-current Order may incur additional Fees (as defined below).

2.5 Other Responsibilities. In the course of providing Services for Customer, JOON shall abide by its Complaints Policy and Treating Customers Fairly Policy.

3. CUSTOMER’S RESPONSIBILITIES

3.1 Provision of Customer Data. To facilitate the linking of JOON Accounts with Customer, Customer will provide the Customer Data to JOON. Customer represents and warrants that any Customer Data provided to JOON is truthful, complete and accurate, and that Customer has sufficient rights to provide the Customer Data to JOON in connection with this Agreement, including providing notice to and obtaining consent from Benefits Recipients for the collection, use and disclosure of Customer Data, as required under applicable law. If JOON becomes aware of any inaccurate, misleading, or fraudulent Customer Data (“Invalid Data”), JOON’s sole obligations under this Agreement shall be to report the Invalid Data to Customer. For purposes of clarity, Customer’s obligation to pay Fees for Services that have been processed by JOON in connection with this Agreement shall not be waived or otherwise affected by any such Invalid Data.

3.2 Reimbursement of Eligible Expenses. Customer shall, via an applicable Administrative User’s JOON Account, or via its account manager, set rules and policies required to determine Eligible Expenses and reimbursable amounts of Eligible Expenses. 

3.3 Communications. Customer shall provide all reasonable assistance to JOON to inform all Benefits Recipients about the availability of the Benefits Services, Benefits Program, and adoption of the JOON Platform. ​

3.4 Third Party-Products. JOON may from time to time make Third-Party Products available to Customer or JOON may allow for certain Third-Party Products to be integrated with the JOON Platform to allow for the transmission of Customer Data to or from such Third-Party Products and the JOON Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. JOON is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. Currently, JOON makes available to Customer integrations for TrueLayer Data (https://truelayer.com/data/) and Plaid Transactions (https://plaid.com/products/transactions/). If Customer (or the applicable Benefits Recipient or Administrative User) does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not use such Third-Party Products. By authorizing JOON to transmit Customer Data from Third-Party Products into the Platform, Customer represents and warrants to JOON that it has all right, power, and authority to provide such authorization.

4. EMPLOYEES AND DEPENDENTS; DATA RIGHTS

4.1 Data Rights.

a. Purpose and Permissions. JOON will retain, use and disclose the Customer Data for the sole purpose of performing the Services and for no other purpose without Customer’s prior written approval. Without limiting the generality of the foregoing, Customer hereby permits JOON to use Customer Data to send Activation Emails and other emails to Benefits Recipients during the Subscription Period.

b. Customer Data and Usage Data. For purposes of clarity, JOON’s rights to process Customer Data are set forth in the Privacy Policy, and JOON will in certain instances collect such Customer Data directly from the applicable Benefits Recipient. Customer agrees and acknowledges that is not at any time entitled to receive or view any Restricted Benefits Recipient Data, and JOON will not share such data with Administrative Users or other Customer personnel.  In addition, JOON may provide Customer with Usage Data. Customer represents and warrants that it shall use Customer Data solely to process reimbursements of Eligible Expenses for Benefits Recipients in connection with the Services, and it will use Usage Data solely to support its receipt of the Services. Customer shall have no right to disclose, share, sublicense or resell Customer Data or Usage Data.

c. Data Protection. Each party shall implement and maintain an information security program comprised of reasonable physical, technical and organizational safeguards designed to protect the security, integrity and confidentiality of Data against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access. Such information security program may include: (i) reasonable physical security controls with respect to all premises in which Data will be processed and/or stored by such party; (ii) reasonable precautions taken with respect to the employment of and access given to Data to such party’s personnel; and (iii) a network security program that includes (A) policies and procedures to address: network security, virus protection, protection of information in transit, change controls, segregation of duties, separation of production and development environments, technical architecture management, audit logs, network segregation, and vulnerability assessments; (B) testing and auditing of all controls; and (C) appropriate corrective action and incident response plans. If a party determines that unauthorized access, acquisition, disclosure or use of Data provided to it by the other party has occurred (each a “Security Incident”), then such party shall promptly give the other party Notice of such event and shall reasonably cooperate with such other party’s investigation of such event. If such event triggers any third-party notice requirements, the party undergoing the Security Incident shall be solely responsible for the timing, content, cost and method of any such notice and compliance with all applicable laws.

d. EU Resident Data; State Privacy Rights. If any Data will be processed under this Agreement that relates to (i) residents of the European Union and is subject to the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”), (ii) residents of the State of California and is subject to the California Consumer Privacy Act, as amended by the California Privacy Rights Act of 2020 (the “CPRA”), or (iii) residents of Virginia and is subject to the Virginia Consumer Data Protection Act (“VCDPA”), the parties will also enter into the data processing addendum (the “DPA“), as updated from time to time, by entering into this Agreement. The terms of the DPA will be incorporated into this Agreement.

5. PAYMENTS AND TAXES

5.1 Fees. Customer agrees to pay, and shall pay, the fees set forth on the Order (the “Fees”). The Fees will be invoiced as set forth on the Order. Customer shall pay each invoice issued by JOON hereunder via an available payment method specified in its JOON Account or as otherwise agreed to by the parties in writing. For purposes of clarity, the Fees may be modified by JOON at each renewal period. If Customer does not agree to the modified Fees, Customer may exercise its right not to renew the Agreement at that time. All payments shall be made in the currency specified on an applicable invoice in immediately available funds, and are non-refundable. In addition to the foregoing, if Customer is delinquent in its payment of Fees due and payable under this Agreement for sixty (60) days or more, JOON reserves the right to suspend and/or terminate Administrative Users’ and Benefits Recipients’ access to the JOON Platform and Benefits Services, delete Usage Data, and delete Customer Data. 

5.2 Payment Processor. JOON uses third-party payment processors (each a “Payment Processor”) to bill Customer and facilitate reimbursements to Benefits Recipients. All Customer payment activity will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to this Agreement. Currently, JOON uses Stripe as its Payment Processor. Customer may access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal/spc and their Privacy Policy at https://stripe.com/us/privacy. JOON is not responsible for any error by, or other acts or omissions of any Payment Processor. 

5.3 Taxes. The Fees are exclusive of, and Customer shall pay, any sales, use, and other taxes and similar charges based on or arising from this Agreement (other than taxes based on JOON’s net income). If JOON is required by law to pay any such taxes or similar charges to any governmental authority, JOON will itemize such taxes in an invoice to Customer and Customer will reimburse JOON therefor.

5.4 Changes to Orders. In the event of material changes to quantities of Benefits Recipients, location of Services, or other categories of Services, the parties shall execute a new Order subject to updated pricing and corresponding Fees. 

5.5 Failed Reimbursements. To the extent JOON is unable to properly reimburse a Benefits Recipient for an Eligible Expense within a year of the submission of the applicable Eligible Expense due to (i) Benefits Recipient error (e.g. provision of incorrect Customer Data pertaining to Benefits Recipient) or (ii) Benefits Recipient’s failure to timely provide supplemental information required to make a reimbursement, JOON shall make commercially reasonable efforts to return applicable funds to Customer when feasible. If such a return of funds to Customer is not feasible, JOON shall be entitled to keep funds associated with unclaimed reimbursements.

6. WARRANTIES; DISCLAIMERS

6.1 General. Each party represents and warrants that: (a) such party is a corporation or limited liability company (as applicable) duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.

6.2 Disclaimers. EXCEPT AS PROVIDED IN THIS SECTION 6, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES , THE MEMBER SERVICES, AND ALL RELATED INFORMATION, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF JOON ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, AND JOON HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, THAT THE JOON PLATFORM WILL BE ERROR-FREE, OR FITNESS FOR A PARTICULAR PURPOSE. JOON SHALL HAVE NO LIABILITY FOR DETERMINING COVERED EXPENSE ELIGIBILITY WITH ACCURACY, AND CUSTOMER SHALL REMAIN SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL RULES, REGULATIONS, AND LAWS APPLICABLE TO ITS PROVISION OF REIMBURSEMENTS TO ITS EMPLOYEES.

7. TERM; TERMINATION

7.1 Term. This Agreement shall commence on the Effective Date and remain in effect during the Subscription Period set forth on the Order, and shall automatically renew for subsequent, equivalent periods of time unless Customer exercises its rights under Section 7.3.

7.2 Termination For Cause. Either party may terminate this Agreement: (i) on thirty (30) days’ prior Notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s Notice; or (ii) immediately on Notice if: (A) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (B) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within thirty (30) days; or (C) the other party is adjudged bankrupt or insolvent.

7.3 Termination for Convenience. Customer may terminate this Agreement for any reason or no reason by having an Administrative User cancel its subscription by contacting Customer’s account manager and completing a brief exit survey regarding its experience. JOON may terminate this Agreement for any reason or no reason by giving Customer thirty (30) days written notice.

7.4 Survival. Upon termination or expiration of this Agreement, any provision of this Agreement that, by its terms or its nature should survive the termination or expiration of this Agreement shall so survive, including without limitation the following provisions: Sections 1, 5, 6, 7.3, 8 (for three (3) years after termination or expiration or: (a) with respect to trade secrets, until they are no longer protected as such under applicable law; and (b) with respect to Customer Data, in perpetuity), and 9 through 12 (inclusive).

8. CONFIDENTIALITY

8.1 Definition. “Confidential Information” means any information disclosed by either party pursuant to this Agreement that is (a) in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Without limiting the generality of the foregoing, JOON’s Confidential Information includes Feedback, Customer Data, and Usage Data, and Customer’s Confidential Information includes Customer Data.

8.2 Duty. Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. Notwithstanding the foregoing, the obligations set forth in this Section 8 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (b) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (c) is approved in writing by the disclosing party; (d) is required to be disclosed by applicable legal authority provided that, if practicable, adequate Notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (e) is independently developed by either party without use of the Confidential Information from the other party.

8.3 Return of Materials. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that JOON may retain copies of the Customer Confidential Information for routine backup and archival purposes.

9. PROPRIETARY RIGHTS

9.1 JOON’s Ownership Rights. As between the parties, JOON shall retain all right, title, and interest in and to the JOON Platform, the Services, Feedback, Usage Data, and JOON’s Confidential Information.

9.2 Customer’s Ownership Rights. As between the parties, Customer shall retain all right, title, and interest in and to the Customer’s Confidential Information (including all Customer Data).

9.3 Feedback. If Customer or any of its employees or contractors submits, orally or in writing, feedback, suggestions, or recommended changes to any of JOON’s products and services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), JOON is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. For the avoidance of doubt, any support tickets or support requests submitted by or on behalf of Customer constitute Feedback. Customer shall not include Customer Confidential Information in any such support ticket or request. Customer hereby assigns to JOON on behalf of itself, and on behalf of its Agents, all right, title, and interest in and to the Feedback, including any ideas, know-how, concepts, techniques, or other intellectual property rights contained therein, and agrees that JOON is free to use such Feedback, without any attribution or compensation to any party, for any purpose whatsoever. JOON is not required to use any Feedback.

10. LIMITATIONS OF LIABILITY

EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNITY) OR A PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY) OR SECTION 4 (EMPLOYEES AND DEPENDENTS; DATA RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE, DATA OR DATA USE, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY LIABILITY IN EXCESS OF THE AMOUNT PAID BY CUSTOMER TO JOON UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE GIVING RISE TO SUCH LIABILITY. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNT STATED HEREIN REFLECTS THE ALLOCATION OF RISKS AND THE LIMITATIONS OF EITHER PARTY’S LIABILITY HEREUNDER. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.

11. INDEMNITY

11.1 Mutual Indemnity. Each party will: (a) defend the other party and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all claims, suits, causes of action, or proceedings brought by a third-party (each a “Claim”) against the other party arising out of or resulting from: (i) any Security Incident affecting the systems of the indemnifying party or its vendors; (ii) the indemnifying party’s (or its personnel’s) gross negligence or more culpable acts; or (iii) the indemnifying party’s breach of its representations and warranties under this Agreement; and (b) indemnify the other party and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (“Losses”) resulting from or incurred in connection with such a Claim.

11.2 Customer Indemnity. Customer will: (a) defend JOON and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any Claims arising out of or resulting from Customer’s (or its personnel’s): (i) failure to reimburse any Eligible Expenses; or (ii) actual or alleged violation of Section 3.1; and (b) indemnify JOON and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any Losses resulting from or incurred in connection with such a Claim.

11.3 Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) will provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt Notice of any Claim (provided that a failure to provide such Notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control of the defense and settlement of the Claim (provided that neither party may settle or dispose of any Claim in a manner that places any obligation of any kind on the other party without the other party’s prior written approval, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the Claim. The Indemnified Party may participate in the Claim at its expense. If the Indemnifying Party fails to assume control of a Claim within thirty (30) calendar days of its receipt of the Indemnified Party’s Notice, the Indemnified Party may assume full control of the Claim, and, without limiting its obligations under this Section 11, the Indemnifying Party will, promptly upon the Indemnified Party’s written request, reimburse the Indemnified Party for the Indemnified Party’s actual costs incurred in connection with its defense and settlement of such Claim.

12. MISCELLANEOUS

12.1 Publicity. Neither party shall issue or release any announcement, statement or press release relating to this Agreement without obtaining the express prior written consent of the other party. Notwithstanding the foregoing, during the Subscription Period, Customer shall use its commercially reasonable efforts to cooperate with JOON in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the use of JOON’s products and services. Additionally, Customer grants JOON permission to use its name or logo in JOON’s marketing materials, including JOON’s website. JOON shall include a trademark attribution notice giving notice of the Customer’s ownership of its trademarks in the marketing materials in which Customer’s name and logo appear. 

12.2 Entire Agreement. This Agreement (including its exhibits) constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. 

12.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). All Notices to JOON must be delivered by email (with confirmation of transmission) to [email protected]. Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.

12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.6 Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city and county of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 

12.7 Dispute Resolution. The parties agree to first attempt to resolve any disputes between them informally through negotiation. If the parties are not able to resolve the dispute after thirty (30) days, then the parties agree to resolve the dispute through binding arbitration by JAMS, Inc. (“JAMS”) under JAMS’ Optional Expedited Arbitration Procedures. The arbitration will be conducted in Los Angeles County, California unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

12.8 Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of JOON. JOON may assign this Agreement in its entirety freely without restriction. Any purported assignment, transfer, or delegation in violation of this section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. 

12.9 Export Regulation. Certain aspects of the Services may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the U.S.

12.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 4.2, Section 8 or Section 11 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.