Product Order Terms and Conditions
TERMS AND CONDITIONS
Effective 4th Feb 2023
1. Terms and Conditions. Joynd and Company have entered into a Product Order (the “Order”). It is the intent of the Parties that these Terms and Conditions (the “T&Cs”) are incorporated into the Order by reference, and into each additional sales order that the Parties may enter for Services related to the Order. In the event of a conflict between an Order and these T&Cs, the Order shall govern. These T&Cs, all Orders, any Schedules to an Order and any amendments to any of the foregoing are one complete agreement and are referred to herein as the “Agreement”.
2. Subscription and Services. Company hereby subscribes for and purchases the Joynd Product and Services set forth on the Order(s) for the Term (defined below) and Company agrees to provide the Joynd Product and the Services, in each case on and subject to the terms of this Agreement. Company confirms that its subscription of the Joynd Product is not exclusive and not transferable (except in connection with a permitted assignment under this Agreement) and shall be used only for Company’s internal business operations and not for resale. Company is prohibited from outsourcing, renting, time-sharing the Joynd Product or using the Joynd Product as a service provided through third party service bureau. Joynd may revoke the subscription at any time based on Company’s breach of the foregoing sentence or Section 5.
3. Implementation and Subscription Terms. Company and Joynd will establish anticipated Subscription Terms in the Order following expected completion of the Development and Implementation Services. The payment date of the Implementation and Development Fees and the first Annual Subscription Fees shall be upon receipt of the invoice for those fees, unless otherwise shall be expressed in the Order. Joynd and Company shall follow any applicable Development and Implementation Statement of Work attached as Schedule A to the Order. Company and Joynd may determine that additional workflows or features are to be added to the initial integration. Joynd and Company shall agree upon a Change Order to support any additional changes or enhancements to the integration that may include new development, implementation and annual subscription fees, or may agree to another product order for any new integrations not supported by this Order. Any Change Order shall be made part of this Order.
4. Fees.
4.1. Company shall pay to Joynd all fees and applicable taxes associated with the subscription of the Joynd Product and the Services to Company as indicated on the Order and pursuant to this Agreement (collectively, “Fees”). Joynd shall invoice the Annual Subscription Fee to Company annually in advance, as illustrated by the Fee Payment Schedule set forth on the Order. The Annual Subscription Fees and the Development and Implementation Fee shall be based on the Tier indicated in the Joynd Product and Fees table set forth in the Order.
4.2. The volume of use by Company or number of Company employees that establish the Annual Subscription Fees in the Order are subject to fair use or range limits as indicated on the Order(s). In the event Company exceeds the fair use or range limits as indicated on the Order(s), Joynd reserves the right to increase the Annual Subscription Fees upon thirty (30) days’ notice to Company.
4.3. Company shall pay all Fees as and when specified in the Order(s) regardless of Company’s utilization of the JOYND Product or receipt of the Services. Currency is as specified on the Order(s). Company shall pay invoices no later than 30 days after invoice receipt or the due date specified on the Order(s), if later. Should Company, acting reasonably, wish to dispute a specific charge on an invoice, Company shall deliver to JOYND a written notice detailing the reasons for the dispute no later than ten (10) days after the due date of the invoice in question. JOYND shall respond to the dispute within fifteen (15) days of receipt of the notice and the parties shall in good faith endeavor to resolve the dispute within 30 days of JOYND’s response. Company shall pay all costs JOYND incurs to collect any overdue, undisputed Fees, provided such costs occur subsequent to a request for payment sent to Company in accordance with the terms of this Agreement.
4.4. Fees do not include sales or use taxes and Company shall pay (and be solely responsible for) all applicable foreign, federal, state, provincial, and local taxes pertaining to Company’s access to, use, or receipt of the JOYND Product (including any withholding taxes required to be deducted from the Fee paid to JOYND). Company is not obligated to pay any taxes from any jurisdiction related to JOYND’s net income, capital, or assets.
4.5. Fees assume that Joynd is not required to provide Services at Company’s facilities. If Company desires Joynd to provide Services at the Company’s facilities, the parties must agree in writing and all travel and living costs associated with such Services, in amounts that are pre-approved by the Company, shall be reimbursed to JOYND no later than 30 days following Company’s receipt of invoice.
5. Restrictions. All rights provided to Company under this Agreement in relation to the Joynd Product and Joynd Data are provided to Company on the condition that Company shall not, and shall not allow any third party to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Joynd Product or Joynd Data, or any part thereof, or otherwise attempt to discover any source code, modify the Joynd Product or Joynd Data in any manner or form (except as expressly permitted by this Agreement and solely through the modification tools and means provided by Joynd), including for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Joynd Product. Company is expressly prohibited from licensing use of, or granting access to the Joynd Product or Joynd Data to any third parties other than Company employees and contractors performing services for the internal business operations of Company or customers of Company using the Joynd Product (collectively “Authorized Users”). Company is responsible for the compliance of all Authorized Users with this Agreement.
6. License to Company Data. To enable Company’s use of the Joynd Product, Company grants Joynd a worldwide, royalty free, non-exclusive, non-transferable (except in connection with a permitted assignment under this Agreement) license (“Company License Grant”) to copy, store, record, transmit, maintain, display, view, print, or otherwise use Company Data to the extent necessary to provide, manage, operate, and/or optimize the Joynd Product. The Company License Grant begins on the Effective Date of the Order and expires thirty (30) days after the last day of the Term. For greater clarity, the term of the Company License Grant for a specific item of Company Data is determined by the Joynd Product Term of the Joynd Product that utilized such Company Data. JOYND acknowledges that, as between the parties, Company is the sole owner of the Company Data.
7. New JOYND Product Features. Unless expressly stated otherwise in this Agreement, any software updates, new features that augment or enhance the JOYND Product, and/or any new Services subsequently purchased by Company from JOYND, will be subject to this Agreement.
8. Passwords – Access – Notification. Company shall not share any passwords or user names (collectively, “Passwords”) except as required for Company to utilize the JOYND Product. Company is responsible for the confidentiality and use of all Passwords provided to or created by Company. Company is responsible for all Electronic Communications, Company Data, and all other data of any kind contained within emails or otherwise entered electronically through the Joynd Product or under Company’s account. Company acknowledges that JOYND will act as though any Electronic Communication received under Company’s Passwords, user name, or account number has been sent by Company. Company and JOYND shall notify the other party as soon as reasonably possible if it becomes aware of any loss, theft, or unauthorized use of any Passwords.
9. Transmission of Data. As the JOYND Product requires Electronic Communication over the Internet, Company acknowledges that such Electronic Communication may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Company further acknowledges that JOYND will not be responsible or liable in any manner for any Electronic Communication or Company Data which are lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned or operated by JOYND, unless such loss is caused by JOYND’s gross negligence or willful misconduct.
10. Lawful Conduct. Each party shall comply with all applicable local, state, provincial, federal, and foreign laws, treaties, regulations, and conventions in connection with its use or provision of the JOYND Product. If either party violates any applicable anti-bribery law or the Foreign Corrupt Practices Act, the other party will have the right to terminate this Agreement immediately upon written notice.
11. Company Electronic Communications. Company shall not send any unlawful, harassing, defamatory, indecent, or threatening Electronic Communication using the JOYND Product. Company shall not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Company shall not in any way express or imply that any opinions contained in any Company Electronic Communication are endorsed by JOYND. Company shall at all times ensure that any use of the JOYND Product by Company and Company’s Authorized Users is in accordance with the terms and conditions of this Agreement and the Order(s).
12. Links. The JOYND Product may provide links to other World Wide Web sites, applications, forms, documents or resources controlled by third parties. Because JOYND has no control over such sites and resources, Company acknowledges that JOYND is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, products, or other materials on, or available from, such sites or resources.
13. Modification to the JOYND Product. JOYND reserves the right at any time and from time to time to modify, temporarily or permanently, the JOYND Product or any part thereof (a “Modification”). In the event a Modification results in the removal or disability of the material functionality of such JOYND Product, JOYND shall give Company at least 90 days’ advance notice of the change and, if the functionality is materially relied upon by Company, then, upon Company’s request, JOYND shall use reasonable efforts to substantially restore such functionality to Company. In the event JOYND is unable to substantially restore such functionality, Company will have the right to terminate this Agreement pursuant to Section 15.2. Except as expressly stated in this Section 13, JOYND will not be liable to Company for any Modification.
14. JOYND Proprietary Rights. Company acknowledges that the JOYND Product contains proprietary and confidential information that is protected by applicable intellectual property and other laws and that, as between the parties, JOYND is the sole owner of the JOYND Product and all JOYND Data.
15. Suspension – Termination.
15.1. Suspension for Immediate or Ongoing Harm. Company acknowledges that the Joynd Product is multi-tenant in nature. JOYND reserves the right to temporarily suspend Company’s access to or use of the Joynd Product, with reasonably contemporaneous notice to Company, if JOYND reasonably concludes that Company’s use of the Joynd Service is causing immediate or ongoing harm to JOYND or others by causing a disruption of the Joynd Service (e.g. a denial of service attack through a Company career portal). In the event JOYND suspends Company’s access to the Joynd Product, JOYND and Company shall use their best efforts to resolve the issues causing the suspension of the Joynd Product. JOYND will not be liable to Company for any suspension described in this Section 15.1.
15.2. Suspension for Delinquent Account. JOYND reserves the right to suspend Company’s use of the JOYND Product if Company fails to pay any undisputed invoice after it is due and JOYND has provided Company at least 10 days’ advance written notice of the overdue invoice following the due date of the invoice. Any disputed amounts must be disputed in accordance with Section 4.3. JOYND will not be liable to Company for any suspension described in this Section 15.2.
16. Term and Termination.
16.1. Term. The term of each Order shall begin on the Effective Date of the Order and end on the final day of the last Subscription Term of the Order. The Initial Term shall automatically renew for additional twelve (12) month periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party gives at least sixty (60) days prior written notice of its intent to terminate the Order at the end of the Term at which time the parties may negotiate a different extension of the Order or new Services or Fees.
16.2. Termination for Material Breach. Either party may terminate this Agreement and all Order(s) upon thirty 30 days’ written notice to the other party in the event of a material breach of any provision of this Agreement or any Order by the other party and where the breaching party fails to cure such breach within 30 days of notice of such breach. If this Agreement is terminated as a result of a material breach on JOYND’s part, JOYND shall refund the pro-rata portion of any Annual Subscription Fees that may have been paid by Company for the portion of the JOYND Product not furnished to Company as of the termination date. If this Agreement is terminated as a result of a material breach on Company’s part, then Company is responsible for all Fees to JOYND that would have charged under the Order(s) then in effect through the end of the Term, and Company shall pay all such Fees within 30 days of the termination date. In addition, upon a termination pursuant to this Section 15.2, all subscriptions to use the JOYND Product and related Services will immediately cease.
16.3. Termination for Convenience. Following the Initial Term and unless otherwise set forth in an Order, either party may terminate this Agreement if there are no outstanding Orders between the parties, upon sixty (60) days’ written notice to the other party. If notice is provided by Company, any pre-paid Annual Subscription Fees will not be subject to refund, and any deferred Fees or balances due to Joynd must be paid within 15 days of notice by Company to JOYND. If notice is provided by JOYND, any pre-paid Annual Subscription Fees, as defined by any effective Order(s), will be subject to pro-rata refund within fifteen (15) days of Company’s delivery of notice of termination to Joynd.
16.4. On Termination or Expiration of Agreement. Upon the termination or expiration of the Term, Company will have no rights to continue use of the JOYND Product. Following the termination or expiration of the Term, JOYND may immediately deactivate Company’s account related to the JOYND Product, and shall delete related Company Data (if any) from JOYND’s servers within thirty 30 days after the effective date of such termination or expiration. In addition, following the termination or expiration of the Term, Company shall: (1) immediately cease to use the JOYND Product and, if applicable, delete the same from Company’s servers no later than 30 days after the effective date of such termination or expiration; and (2) have no further rights to continue to use the JOYND Product in any manner.
17. Confidential Information.
17.1. For purposes of this Agreement, confidential information (“Confidential Information”) includes: (1) the terms of this Agreement; (2) any Company Data or JOYND Data; and (3) any information that would be reasonably deemed to be confidential. Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party; and (b) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own, and at all times exercising at least a reasonable degree of care in the protection of such Confidential Information. JOYND shall restrict its employees’ access to Company’s Confidential Information to only those employees necessary to successfully provide the JOYND Product. Notwithstanding anything to the contrary herein, JOYND has the right to disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain Confidential Information in strict confidence and use it only to facilitate the performance of their services for JOYND in connection with the performance of this Agreement.
17.2. Notwithstanding Section 17.1 above, Confidential Information does not include information which the recipient can demonstrate: (1) is known by the receiving party without violation of any contractual, fiduciary, or other obligation of confidentiality prior to the disclosure thereof by the disclosing party; (2) properly came into the possession of the receiving party from a third party which was not under any obligation to maintain the confidentiality of such information; (3) has become available to the public or is generally known in the industry through no act or fault on the part of the receiving party in breach of this Agreement; or (4) was independently developed by or for the receiving party without use or reference to the disclosing party’s Confidential Information.
17.3. This Section 17 does not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. Unless prohibited by law, each party shall give the other party prompt notice of the receipt of any subpoena or other request for such disclosure and reasonably cooperate with the party seeking a protective order or other confidential treatment of any Confidential Information which it has disclosed to the receiving party.
17.4. In addition, Confidential Information considered personal information (“Personal Information”) under any relevant personal information security laws and regulations (“Data Security Laws”) applicable to JOYND and/or Company will be subject to the higher standard of such Data Security Laws for Personal Information as applicable to the recipient of such Personal Information. Each party shall reasonably cooperate with the other party to assist each party to comply with the Data Security Laws applicable to it.
17.5. Each party agrees that its obligations under this Section 17 are necessary and reasonable in order to protect the disclosing party, and expressly agrees that monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of any covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of posting bond.
18. Warranties.
18.1. Warranty of Functionality. During the Term, JOYND warrants to Company that the JOYND Product will achieve in all material respects the functionality described in the Order and that such functionality will be maintained in all material respects in subsequent upgrades to the JOYND Product. JOYND does not warrant that the JOYND Product will be error-free. In the event JOYND breaches this warranty, Company’s sole and exclusive remedy is that JOYND shall use reasonable efforts to modify the JOYND Product to achieve in all material respects the functionality described in the Order, and if JOYND is unable to restore such functionality, then Company will be entitled to terminate this Agreement within 90 days of the date of the first instance of any material functionality problem as it relates to the JOYND Product and receive a pro-rata refund of the Annual Subscription Fees paid under this Agreement for the remaining but undelivered use of such JOYND Product as of the date of the termination. JOYND will have no obligation with respect to any warranty claim unless Company provides JOYND with written notice of such claim within 60 days of the first instance of any material functionality problem.
18.2. Service Uptime Warranty. JOYND warrants that during the Term, the Joynd Product will meet 99.5% uptime, excluding scheduled maintenance windows when JOYND conducts normal maintenance and upgrades. Scheduled maintenance windows that may be used are the three hour periods commencing at 11 p.m. Wednesday and Friday nights, and the five hour periods commencing at 11 p.m. Saturday nights, in each case EST/EDT. If in a given calendar month, the uptime commitment is not met, then Company’s sole and exclusive remedy will be to receive a credit of 1/12 of the Annual Subscription Fee to be applied to the following subscription term. Any credit is expressly conditional upon Company providing JOYND with written notice of such failure by the 30th day of the month following such service level failure and JOYND’s confirmation of the breach of the uptime commitment. Failing to meet the uptime in two of four consecutive months will be deemed a breach of the warranty in Section 18.2. JOYND does not and cannot control the transmission of data between the Joynd Product and Company. Such transmission depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inaction of such third parties can impair or disrupt Company’s or JOYND’s connections to the Internet (or portions thereof); accordingly, JOYND will have no liability or obligation to Company resulting from or related to such events. JOYND shall use commercially reasonable efforts to notify Company of all regularly scheduled and emergency maintenance sessions.
18.3. Services Warranty. With respect to the Services, JOYND warrants that: (1) it and each of its employees, consultants, and subcontractors (if any) it uses to provide and perform the Services under this Agreement has the necessary knowledge, skills, experience, qualifications, rights, and resources to provide and perform the same in accordance with this Agreement; and (2) Services will be performed for and delivered to Company in a good, diligent, and workmanlike manner in accordance with industry standards.
18.4. Other Warranty. JOYND warrants that the JOYND Product will be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
19. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 18, JOYND DOES NOT REPRESENT OR WARRANT THAT COMPANY’S USE OF THE JOYND PRODUCT AND THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE JOYND PRODUCT WILL MEET COMPANY’S REQUIREMENTS OR THAT ALL ERRORS IN THE JOYND PRODUCT WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 18 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY JOYND IN RELATION TO THE JOYND PRODUCT AND THE SERVICES. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 18, THE JOYND PRODUCT IS PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. COMPANY ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE JOYND PRODUCT OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR COMPANY’S PURPOSES. COMPANY ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 18 OF THIS AGREEMENT.
20. Limitation of Liability.
20.1. Limitation of Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, INCLUDING LOSS OF REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, ARISING FROM ANY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION (INCLUDING TORT) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS IT CONTEMPLATES.
20.2. Limitation on Amount of Damages. Except as provided below in this Section 20.2 and excluding claims based on Joynd’s gross negligence or willful misconduct or its indemnification obligations under Section 21, Joynd’s aggregate liability to Company arising out of or related to this Agreement shall not exceed (a) the total amount paid by Company under the Order for the JOYND Product in the twelve (12) months preceding the incident subject to the claim or (b) with respect to damages caused by JOYND’s material breach of its confidentiality obligations as set forth in this Agreement, the total amount paid by Company under the Order for the JOYND Product in the twenty-four (24) months preceding the incident subject to the claim.
20.3. Limitation on Claims. To the extent permitted by law, no cause of action or claim, however arising, may be asserted by a party against the other party where such party has (i) actual notice for more than 90 (ninety) days prior to the institution of a legal proceeding alleging such cause of action; and (ii) has not presented the claim or notified the other party about the cause of action within such 90 day period.
21. Indemnification.
21.1. JOYND’s Indemnity Obligations. JOYND will indemnify, defend and hold harmless Company, including its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Company Indemnitees”) from and against any and all Losses arising from a Third Party Claim alleging that use of the JOYND Product infringes such third party’s rights under any applicable patent, copyright, trademark, or trade secret (“Third Party Claim”). If JOYND receives information about an infringement or misappropriation claim related to the JOYND Product, JOYND may in its sole discretion: (a) replace or modify the JOYND Product so that the JOYND Product become non-infringing (while substantially preserving the functionality of the JOYND Product), or (b) obtain for Company the right to continue using the JOYND Product in accordance with this Agreement. If JOYND determines that neither of these alternatives is commercially reasonable, JOYND may terminate the Agreement, without liability, upon written notice to Company, and refund to Company any prepaid Annual Subscription Fees covering the term remaining after the effective date of termination on any JOYND Products that are the subject of the infringement. JOYND shall have no obligation to defend or indemnify Company for any such claims, suits or demands to the extent the alleged infringement is based on: (i) a modification of the JOYND Product by anyone other than JOYND; (ii) JOYND’s compliance with Company’s specifications or instructions; (iii) use of the JOYND Product other than in compliance with the terms of this Agreement, or applicable law; (iv) the Company Data; or (v) use of the JOYND Product in combination with any product, services, content, materials, or software not provided by JOYND (including any Vendor Product) where the alleged infringement relates to such combination. The indemnity obligation set forth in this Section 21.1 shall be Company’s sole remedy in the event of an Third Party Claim. JOYND’s obligations hereunder are contingent upon Company: (1) promptly, and in no event later than thirty days of the Third Party Claim or the deadline for filing defense related documents in accordance with applicable rules of procedure (whichever is sooner), gives JOYND notice of any such Third Party Claim; (2) gives JOYND sole control of the defense and related settlement negotiations; and (3) promptly provides JOYND with all reasonably available information and assistance necessary to perform JOYND’s obligations under this Section 21.1. Provided JOYND complies with this Section 21.2, Company will have no further remedy against JOYND for Losses relating to a Third Party Claim.
21.2. Company’s Indemnity Obligations. Company shall indemnify, defend, and hold JOYND including its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “JOYND Indemnitees”) harmless from and against any Losses arising out of or related to a Third Party Claim against a JOYND Indemnitee (a) alleging that the Company Data, or any use thereof infringes the legal or intellectual property rights of any third party; (b) arising from Company’s gross negligence or willful misconduct; or (c) arising from any unauthorized disclosure of JOYND Data provided that JOYND: (i) promptly, and in no event later than 30 days of the Third Party Claim or the deadline for filing defense related documents in accordance with applicable rules of procedure (whichever is sooner), provides Company notice of the Third Party Claim; (ii) gives Company sole control of the defense and related settlement negotiations; and (iii) provides Company with all reasonably available information and assistance necessary to perform Company’s obligations under this Section 21.2. Provided Company complies with this Section 21.2, JOYND will have no further remedy against Company for Losses relating to a Third Party Claim.
21.3. Survival of Indemnification Obligations. The indemnification obligations contained in this Section 21 will survive the termination or expiration of the Term of this Agreement for three years.
22. Choice of Law – Designation of Forum – Waiver of Jury Trial. Except where governed by the applicable federal laws of the United States, the laws of the State of Florida (without giving effect to any conflicts of laws principles in either case) govern all matters arising out of or relating to this Agreement and all of the transactions it contemplates, including its interpretation, construction, performance, and enforcement. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring such legal action or proceeding in the courts of the State of Florida. Each party waives, to the fullest extent permitted by law any objection, both now and in the future, to the choice of law and designation of forum outlined above. IN ADDITION, EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES; THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. In the event of any legal action or proceeding between the parties hereto arising out of or relating to this Agreement, the prevailing party will be entitled to an award of reasonable attorney fees and costs. In addition, the International Sale of Goods Act and the United Nations Convention on Contracts for the International Sale of Goods have no application to this Agreement.
23. Trademark Information. The trademarks and service marks of each party will not be used in any manner without the other party’s prior written consent.
24. Notices. Except as otherwise provided in this Agreement, the parties shall provide all notices required under this Agreement in writing and such notices will be deemed given when delivered by hand or courier, facsimile, electronic transmission or five days after mailing, postage prepaid, by certified mail, return receipt requested. The address for notices in the case of Company is as appears on the Order; and in the case of Joynd, to: CloudMills HRNX LLC, Attention: President, 3564 Avalon Park East Boulevard, Suite 1, #2016, Orlando, Florida 32828, (email: president@joynd.io). In all cases in this Agreement where an address, telephone number, email address, or Internet web page is specified, the same may be changed at any time by a party notifying the other party in accordance with this Section 24.
25. Assignment and Delegation – Successors and Assigns.
25.1. Neither party may assign any of its rights nor delegate any performance under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, such consent is not required to assign or delegate: (1) to the successor of all or substantially all of either parties’ business or assets; or (2) for JOYND to make an assignment or delegation to a subsidiary or affiliate that provides the JOYND Product to Company. Any purported assignment of rights or delegation of performance in violation of this Section 25.1 is void.
25.2. This Agreement binds and benefits the parties’ respective successors and permitted assigns. This Section 25.2 does not address, directly or indirectly, whether: (1) rights under this Agreement are assignable; or (2) performance under this Agreement is delegable. Section 25.2 addresses these matters.
26. Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement (other than for a delay in the payment of money due and payable hereunder) to the extent such failure or delay is caused by conditions beyond the reasonable control of and not the fault of the nonperforming party, including Acts of God, pandemics, earthquakes, floods, fire, hurricanes, unusually extreme or severe weather, wars, insurrections, terrorism, riots, labor stoppage, criminal acts of third parties, provided that the nonperforming party gives the other party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. So long as Company is receiving the Joynd Product, it cannot use a “force majeure” event to avoid making payment of any Fees that are due.
27. Authority to Contract. Each party represents to the other that it has the authority to enter into this Agreement, that the entity or individual name which it has provided on its own behalf for this Agreement is a true and accurate representation of its legal identity, and that the execution and performance of this Agreement has been duly authorized by all requisite formalities.
28. Independent Parties. Nothing in this Agreement is intended to create a joint venture, partnership, agent, or employment relationship between the parties. Neither party by virtue of this Agreement has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
29. Rights and Remedies Cumulative. Except where a remedy is identified as a party’s sole remedy, the rights and remedies set forth in this Agreement are not intended to be exhaustive and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently exist in law or in equity or by statute or otherwise.
30. Amendments – Waiver. Any amendment to this Agreement must be in writing and signed by both parties. No provision, right, power, or privilege in this Agreement may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced.
31. Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision will be ineffective to the extent of such illegality, invalidity, or unenforceability without invalidating the remainder of such provision or the remainder of this Agreement.
32. Headings. The section headings used in this Agreement are for convenience of reference only and do not affect the interpretation or construction of this Agreement.
33. Survival. After termination or expiration of this Agreement, all provisions relating to payment will survive until completion of the required payments. In addition, Sections 6, 7, 14, 16.4, 17, 19, 20, 21 (for three years pursuant to Section 21.3), and 22 through 38 will survive the termination or expiration of this Agreement.
34. Company Purchase Orders. If Company issues a purchase order in respect of this Agreement, Company acknowledges that such purchase order is solely for the convenience of Company’s purchasing system and does not in any way modify or add to this Agreement or the rights or obligations of JOYND or Company.
35. Construction. This Agreement will be construed as if drafted by both parties and will not be strictly construed against either party.
36. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original and all of which will constitute one and the same agreement. Receipt of an originally executed counterpart signature page by facsimile or an electronic reproduction of an originally executed counterpart signature page by electronic mail or by e-signing is effective execution and delivery of this Agreement.
37. Entire Agreement. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
38. Definitions. The following definitions apply to this Agreement (in addition to the other defined terms specified elsewhere in this Agreement):
“Company Data” means data provided to Joynd by Company that may be processed by the Joynd Product (or the results of such processing) in the course of implementing and/or using the Joynd Product.
“Electronic Communication” means any transfer of signs, signals, text images, sounds, data, or intelligence of any nature transmitted in whole or in part electronically.
“Including,” whether or not capitalized, means “including, but not limited to”.
“JOYND Data” means data sourced or compiled by Joynd or licensed to Joynd from third parties and aggregated statistical data obtained from Joynd’s customers (including Company’s) use of the Joynd Product (aggregated statistical data will not include data which can be used by itself, or with other data to show it is associated with a particular individual).
“JOYND Product” means the specific product subscribed for under the Order, along with the integration that Joynd provides to the Company integrating Joynd’s products and services with Vendor Products solely for the purpose of serving the Company’s end users.
“Losses” means losses, damages, judgments, settlement payments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification under this Agreement.
“Services” means the Development and Implementation Services listed on Schedule A, the Support Services listed on Schedule B and any additional services that Company purchases beyond the scope of the Development and Implementation Services and the Support Services.
“Subscription Term” means the range of dates that the parties agree that the subscription terms for the Joynd Product shall begin, and end, which range shall be expressed in the order.
“Third Party Claim” means any claim, demand, suite or proceeding made or brought by a third party against one of the parties to this Agreement.
“Vendor Product” means Company’s vendors’ software products or services with which the Joynd Product will be utilized for Company and its end-users, as indicated on the Order.