This master license agreement (“Agreement”) governs your use of and access to the services provided by FunJoiner, LLC, a Delaware Limited Liability Company, D.B.A FunJoin (“Company”), in connection with the service plan (as defined in the “Preferred Pricing Quote”). This Agreement is effective as of the date you accept the Preferred Pricing Quote (as defined below) (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; (iii) you agree, on behalf of the party that you represent, to this Agreement; and (iv) you are at least 18 years of age.
FunJoin provides an online service that allows Authorized Users to submit input and obtain results using one or more of Company’s various Software Products. The intended use of the Software Products is to help manage and administer Licensee’s business or businesses (“Business”) as well as providing a platform for their customers (“Customer User”).
“Administrative User” shall mean an individual who is currently or proposed to be employed or retained by Licensee and designated by Licensee to manage and maintain the Licensee Data using Company’s services.
“Authorized User” shall mean an individual who is either an Administrative User or Client User.
“Client User” shall mean an individual who is a current, former or prospective staff member of Licensee, current or former camper of Licensee, or a parent, guest, legal guardian, or caregiver thereof, who is authorized under this Agreement to use the Software Products. No one other than an Authorized User may access and use the Software Products.
“Company System” shall mean the Company Software Products (including the Online Forms) developed, deployed and delivered by Company, including, among other things, underlying software and applications.
“Confidential Information” means all trade secrets, business and financial information, software, machine and operator instructions, business methods, procedures, know-how, and other information that relates to the business or technology of either party and is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. For avoidance of doubt, the Company System is Company Confidential Information.
“Data Protection Law” means all federal, state, local and foreign laws, statutes, regulations, rules, and official guidance applicable to the protection of Personal Data under this Agreement in all relevant jurisdictions.
“Licensee Data” shall mean all data (including but not limited to Personal Data) imported into the Company System or input into the Company System by Authorized Users of the Software Products.
“Online Forms” shall mean the Software Products which permit Client Users to input data.
“Personal Data” means all information that Company receives from Licensee or Authorized Users in the course of this Agreement that identifies or can be used to identify any specific individual or otherwise concerns the personal circumstances of an identified individual and accordingly is protected under Data Protection Law. Personal Data includes without limitation “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), “Personal Data” as defined in Regulation (EU) 2016/679 (together with any national implementations thereof, “GDPR”), and “personal information” as defined under the Massachusetts Standards for the Protection of Personal Data of Residents of the Commonwealth (201 CMR 17.01 et seq.).
“Preferred Pricing Quote” shall mean the Company order form that sets forth the Software Products, custom preferred pricing, payment information and such other terms and conditions, attached hereto and incorporated herein by this reference, and shall be subject to and governed by the terms and conditions of this Agreement. Each Preferred Pricing Quote shall remain in full force and effect unless and until Licensee signs a new Preferred Pricing Quote that specifically replaces such prior Preferred Pricing Quote.
“Software Products” shall refer to the then-current version (inclusive of any updates or modifications thereto) of those computer program modules and accompanying graphical user interfaces described in Preferred Pricing Quote to this Agreement.
“Third Party Service” shall mean a third party (non-Company) product or service that interoperates with the Software Products and that Licensee or its Authorized Users may access in connection with using the Software Products, including by way of example and not limitation credit card, transaction and merchant processing (including but not limited to the services described in Section 2(K) of this Agreement), API access or background check services.
TERMS AND CONDITIONS
1. GRANT OF LICENSES AND RELATED RIGHTS
A. SCOPE OF LICENSES
During the Term, Company grants to Licensee, and Licensee accepts, a non-exclusive, revocable, nontransferable, limited license on the terms set forth herein to access and use the Software Products only with the Company modules specified by Licensee from among those listed in Preferred Pricing Quote. Licensee shall prevent unauthorized access to or use of the Software Products, and notify Company promptly of any such unauthorized access or use.
As between Company and Licensee, all data input into the Company System by an Authorized User is considered Licensee Data owned by Licensee, except as otherwise agreed upon by Licensee and Company or as otherwise set forth in this Agreement. Company acknowledges that Licensee Data is valuable property of Licensee, and Company warrants that it will use commercially reasonable efforts to back-up Licensee’s data in accordance with Company’s then current data backup policy. Licensee is solely responsible for the accuracy, quality and legality of Licensee Data and the means by which Licensee acquired the Licensee Data. Licensee may designate one or more Administrative Users who shall have limited access to the Licensee Data on a need-to-know basis. Licensee is solely responsible for the actions and omissions of each Administrative User including, among other things, designating the Software Products to which such individual has access and restricting his or her use and disclosure of Confidential Information. Licensee acknowledges that, except for the limited license expressly granted hereunder and the Licensee Data, all right, title, and interest in and to the Software Products and the associated applications and functionality of the Software Products are and shall remain Company’s sole and exclusive property, and that the Software Products shall not be used in any manner except as expressly permitted by this Agreement.
2. AUTHORIZED USERS
3. PROHIBITED ACTS
Licensee shall not, nor shall it permit any Authorized User or any other individual or entity to: (a) use or access the Software Products except as expressly permitted by this Agreement; (b) disassemble, decompile, or decrypt any applications, software, source code, or other computer language that provides or helps to provide functionality (including query results) in the Software Products, or that otherwise powers or comprises the Software Products; (c) remove, alter, cover, or obscure the copyright or other proprietary notices appearing in the Software Products; (d) alter, modify, or prepare derivative works based on any software or application accessible through the Software Products; (e) sell, license, rent or otherwise make available the Software Products or a Third Party Service to, or use any part of the Software Products or a Third Party Service for the benefit of, anyone other than Licensee or Authorized Users; (f) use the Software Products or a Third Party Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) use the Software Products or a Third Party Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses; (h) interfere with or disrupt the integrity or performance of the Software Products or third-party data contained therein; (i) attempt to gain unauthorized access to the Software Products or its related systems; (j) access the Software Products in order to build or assist in building a competitive service or to benchmark with a non-Company service; (k) reverse engineer the Software Products (to the extent such restriction is permitted by law); or (l) share credentials or any kind of access to the Company System with users outside Licensee’s organization.
B. COMPANY’S WARRANTIES AND DISCLAIMERS
Company warrants that the Software Products will perform substantially in accordance with the applicable documentation for the respective Software Products. THIS WARRANTY IS THE ONLY WARRANTY MADE BY COMPANY WITH RESPECT TO THE COMPANY SYSTEM OR THIS AGREEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON- INFRINGEMENT. FURTHER, THE WARRANTY SET FORTH ABOVE: (A) IS CONTINGENT UPON LICENSEE’S PROPER USE OF THE SOFTWARE PRODUCTS AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT; (B) DOES NOT GUARANTEE EXECUTION OR OPERATION OF THE SOFTWARE PRODUCTS WITHOUT INTERRUPTIONS, BUGS, OR ERRORS, OR THAT ALL ERRORS WILL BE CORRECTED; (C) DOES NOT COVER ANY BREACHES TO THE EXTENT CAUSED BY THIRD PARTY HOSTING, INTERNET, OR OTHER THIRD PARTY SERVICE PROVIDERS OUTSIDE THE CONTROL OF COMPANY; (D) DOES NOT APPLY TO LICENSEE DATA OR TO DATA (INCLUDING PERSONAL DATA) TO THE EXTENT THE INPUT, OUTPUT, ACCURACY, AND/OR SUITABILITY OF WHICH ARE MADE BY, OR UNDER CONTROL OF, LICENSEE OR AN AUTHORIZED USER; (E) DOES NOT GUARANTEE THAT THE SOFTWARE PRODUCTS AND/OR THE RELATED APPLICATIONS WILL MEET LICENSEE’S REQUIREMENTS OR OPERATE IN THE COMBINATIONS LICENSEE MAY SELECT OR USE; (F) IS AUTOMATICALLY AND IMMEDIATELY VOID UPON ANY MATERIAL BREACH OF THIS AGREEMENT BY LICENSEE OR AN AUTHORIZED USER, OR UPON ANY ACCESS OR USE OF THE SOFTWARE PRODUCTS NOT PERMITTED BY THIS AGREEMENT; AND (G) WILL BECOME VOID IF THE ALLEGED BREACH IS NOT DULY REPORTED TO COMPANY WITHIN FIFTEEN (15) DAYS AFTER LICENSEE BECOMES AWARE THEREOF. COMPANY’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY SHALL BE, AT COMPANY’S OPTION, FOR COMPANY TO CORRECT SUCH NONCONFORMITY BY REPAIR, REPLACEMENT, RECONFIGURATION, OR SUITABLE WORKAROUND, OR TO TERMINATE THIS AGREEMENT AND REFUND THE PORTION OF THE LICENSE FEE ACTUALLY RECEIVED BY COMPANY DIRECTLY RELATING TO THE NONCONFORMING SOFTWARE PRODUCTS IN THE PRIOR TWELVE (12) MONTH PERIOD TO THE CLAIM ARISING.
C. LIMITATION OF LIABILITY
EXCEPT LIABILITIES ARISING FROM LICENSEE’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. EXCEPT LIABILITIES ARISING FROM LICENSEE’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT LICENSEE’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION BELOW. IT IS THE SOLE RESPONSIBILITY OF LICENSEE TO MAINTAIN A STORED BACKUP COPY OF LICENSEE’S DATA IN THE EVENT THAT THE SOFTWARE PRODUCTS ARE RENDERED UNAVAILABLE FOR ANY LENGTH OF TIME.
D. PAYMENT AND TAXES
Licensee shall pay Company the amounts, and at the times, specified in the Preferred Pricing Quote for the license granted under Section 1(a) (1) hereof and other products and services that Company may provide from time to time, including the Software Products. The license fee may increase each year to account for inflation, development enhancements, increased costs of doing business, and otherwise; provided Company provides you with at least thirty (30) days prior written notice (email sufficient). The parties acknowledge and agree that new products, new modules and new versions of the Company System shall not be limited by the price increases more specifically described herein. In addition, Licensee shall be responsible for any applicable taxes, including without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s Preferred Pricing Quote for Software Products and other services, assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Preferred Pricing Quote, all fees, rates and estimates exclude sales taxes. Company is solely responsible for taxes based upon Company’s net income, assets, payroll, property, and employees. Unless otherwise set forth in a Preferred Pricing Quote, Company is hereby irrevocably authorized to withdraw the amounts owed from Licensee’s funds on or after the specified payment date, unless Licensee advises Company in writing within ten days after payment processing that such withdrawal is not authorized, setting forth the applicable reasons. Without limiting Company’s other remedies, if any payment owed by Licensee is unpaid more than 30 days from the date incurred, Company may (1) add late fees of 1.5% per month to the amount due, (2) accelerate Licensee’s fee obligations for the remaining term of this Agreement so that all such fees become immediately due and payable, and (3) suspend services, including but not limited to access to the Software Products, the Company System, the Licensee Data and general support, to Licensee until such amounts are paid in full. BY PROVIDING THE FOREGOING AND SIGNING AND RETURNING THE AGREEMENT AND ASSOCIATED ONBOARDING INFORMATION, LICENSEE, UNLESS OTHERWISE SET FORTH IN A PREFERRED PRICING QUOTE, HEREBY AUTHORIZES COMPANY TO WITHDRAW THE APPLICABLE AMOUNTS FROM LICENSEE’S CHECKING ACCOUNT OR CREDIT CARD IN ACCORDANCE WITH THIS AGREEMENT FROM THE EFFECTIVE DATE UNLESS LICENSEE ADVISES COMPANY, IN WRITING WITHIN TEN (10) DAYS AFTER COMPANY PROVIDES WRITTEN NOTICE OF ITS INTENT TO MAKE ANY SUCH WITHDRAWAL, THAT SUCH WITHDRAWAL IS NOT AUTHORIZED AND SETTING FORTH THE APPLICABLE REASONS
Company agrees to provide consultation via telephone or via Company’s electronic ticketing system regarding the use of the Company System to Authorized Users, at the hours and in the manner, specified on Company’s website. Company shall use commercially reasonable efforts to respond to Licensee’s requests for assistance with reasonable care and speed. Licensee acknowledges that delays in response time may result from time to time because, among other things, Company requires additional information from Licensee in order to provide the information or resolution to address the Licensee request(s). Licensee also acknowledges that delays may result due to unforeseen technical and/or personnel problems encountered by Company. If Company determines that Licensee’s requests for consultation are excessive in scope of hours, frequency of consultation, speed of resolution or otherwise, Company shall notify Licensee and may, but has no obligation to, provide enhanced consultation at an additional fee in accordance with Preferred Pricing Quote.
E. PROPRIETARY RIGHTS AND LICENSES
Subject to the limited rights expressly granted under this Agreement, Company and its licensors reserve all right, title and interest in and to the Software Products, and in and to the trademarks, trade names, copyrights, patents, graphics, text and other material appearing on the Company System, including all related intellectual property rights. No rights are granted to Licensee under this Agreement except as expressly set forth herein. Licensee grants to Company, its affiliates and applicable contractors a world-wide, royalty free, perpetual, irrevocable, and non-exclusive license to use, distribute, reproduce, modify, and display the Licensee Data, as reasonably necessary for Company to (i) provide the Software Products and associated services (including access to Third Party Services) in accordance with this Agreement; (ii) evaluate and provide benchmarking, analytics and trends for Licensee and, on an aggregated basis, evaluate and provide trends, analytics, best practices, and benchmarking for Company, third parties and its other customers; and (iii) improve the Software Products and associated services. Except for the limited license granted herein, no rights in Licensee Data are granted to Company under this Agreement. Licensee grants to Company and its affiliates a world-wide, royalty free, perpetual, irrevocable, and non-exclusive license to use and incorporate into Company’s and/or its affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or its Authorized Users relating to the operation of the Software Products or Company’s services.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Licensee’s Confidential Information includes Licensee Data; Company’s Confidential Information includes the Software Products; and Confidential Information of each party includes the terms of this Agreement (including pricing). Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) is received from a third party, or known to the Receiving Party prior to its disclosure by the Disclosing Party, without breach of any obligation owed to the Disclosing Party, or (c) was independently developed by the Receiving Party.
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (and at least reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Licensee shall comply with all applicable laws and regulations in connection with this Agreement including, without limitation, as to disclosure or use of all information and materials which Company obtains on behalf of Licensee or Licensee’s participants, parents, staff, customers and/or affiliated persons and entities.
G. PRIVACY AND DATA SECURITY
During the course of the Agreement, Company may receive or have access to Personal Data of Licensee. Company agrees and covenants that it will use and disclose Personal Data solely and exclusively for the purposes for which the Personal Data, or access to it, is provided pursuant to the terms and conditions of this Agreement. Further, each Party shall comply with all Data Protection Laws applicable to the parties’ respective collection, use, disclosure and other processing of Personal Data hereunder. Without limiting the generality of the foregoing, Licensee represents and warrants that it has, and will obtain, all right, title, and interest in and to any Licensee Data provided hereunder which may be necessary for Company to process such Personal Data for the purposes set forth herein, including in connection with the analysis and monitoring of Licensee’s and its Authorized Users’ use of the Software Products, and in connection with the legitimate non-commercial business and information security operations of Licensee.
In the event the Parties must enter into any agreement or additional provisions to maintain compliance with all applicable Data Protection Laws, the Parties shall negotiate in good faith to agree to such additional terms, including any processing terms required under the GDPR. Licensee represents that it is not subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), will not provide any information that is subject to HIPAA to Company, and will promptly advise Company if Licensee becomes or provides any information subject to HIPAA.
Company will maintain reasonable and appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data, including Personal Data. In the event that any Personal Data is disclosed by Company (or its employees, subcontractors or agents) to an unauthorized third party (a “Data Breach”), then Company shall give notice to Licensee, with full particulars if known, and shall commence an investigation of any such incident. Licensee shall be solely responsible for providing any notices or providing any remedies required by applicable Data Protection Law.
H. THIRD PARTY SERVICES
Licensee or its Authorized Users may use the Software Products to obtain one or more Third Party Services from the provider that Company retains from time to time to provide that Third Party Service (a “Third Party Provider”). If Licensee chooses to use a Third Party Service, Licensee grants Company permission to allow the Third Party Provider to access Licensee’s Data as required for the interoperation of that Third Party Service with the Software Products.
Company does not guarantee or warrant the continued availability of any Software Products features designed to interoperate with Third Party Services. Company may cease providing such features without entitling Licensee to any refund, credit, or other compensation, if for example and without limitation, the Third Party Provider ceases to make the Third Party Service available for interoperation with the Software Products in a manner acceptable to Company. FURTHER, THE THIRD PARTY SERVICES, FEATURES TO SUPPORT SUCH THIRD PARTY SERVICES AND THE INTEROPERATION WITH SOFTWARE PRODUCTS ARE PROVIDED “AS-IS,” “WHERE IS” AND AS AVAILABLE. TO THE EXTENT PERMITTED BY LAW, COMPANY, AS IT RELATES TO THE THIRD PARTY SERVICES, FEATURES TO SUPPORT SUCH THIRD PARTY SERVICES AND THE INTEROPERATION WITH SOFTWARE PRODUCTS, EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE TERMS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
Any acquisition by Licensee of Third Party Services, and any exchange of data between Licensee and any Third Party Provider, is solely between Licensee and the Third Party Provider. If Licensee or any Authorized User obtains Third Party Services, whether or not introduced or recommended by Company, LICENSEE, ON BEHALF OF ITSELF AND ITS AFFILIATES, AGREES TO LOOK ONLY TO SUCH THIRD PARTY PROVIDER FOR ANY CLAIM RELATING TO SUCH THIRD PARTY SERVICES. Without limiting the preceding sentence, Company is not responsible for any delays, disabled accounts, discontinued accounts or services, processing accounts and any disclosure, modification or deletion of Licensee’s Data resulting from access by such Third Party Service or its provider. Licensee shall comply with the terms of service of any Third Party Service with which Licensee uses the Software Products, and COMPANY SHALL BE ENTITLED TO RELY AS A THIRD PARTY BENEFICIARY ON ANY LIMITATIONS ON LIABILITY CONTRACTUALLY IMPOSED BY A THIRD PARTY PROVIDER RELATING TO LICENSEE OR ITS AFFILIATES.
If Licensee uses any of the Software Products or the Third Party Services, Licensee hereby acknowledges and agrees that Licensee shall be solely responsible for obtaining all necessary consents from its users for any Third Party Provider or Company to share Personal Data.
LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE OWNERS, MANAGEMENT, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY LIABILITY, COST OR EXPENSE (INCLUDING ATTORNEY’S FEES), ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT BY LICENSEE OR ITS AUTHORIZED USERS.
A. BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon and shall inure solely to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person, other than the parties hereto and the indemnified parties, any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement, and no other person shall be deemed a third-party beneficiary under or by reason of this Agreement. Licensee shall not sell, transfer, lease, assign, pledge, mortgage or otherwise dispose of any of the rights, privileges, duties, and obligations granted or imposed hereunder without Company’s prior consent. Notwithstanding anything to the contrary contained herein, Company may freely assign this Agreement to any affiliate or subsidiary or to a third party pursuant to any acquisition, merger or change of control of Company.
B. ENTIRE AGREEMENT; SURVIVAL; AMENDMENT; WAIVER
This Agreement and the Preferred Pricing Quote constitutes the entire agreement between Company and Licensee and supersedes all prior agreements and understandings, whether oral or written, relating to the subject matter hereof expressly including any license agreement between the parties. The provisions of the following sections, and the applicable schedules referred to therein, will survive the termination or expiration of this Agreement for any reason: Section 1(a) (3), 1(c), 1(g), 1(h), 1(i), and Section 2 all except (c) and (f). Unless otherwise expressly provided in this Agreement, no delay or omission on the part of any party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right under this Agreement operate as a waiver of any other right or privilege under this Agreement nor shall any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under this Agreement. Notwithstanding anything to the contrary contained herein, Company reserves the right, in its sole discretion to make any changes to the Software Products or associated services (including Third Party Services) that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the Software Products to its customers; (ii) the competitive strength of or market for the Software Products; or (iii) the Software Products cost efficiency or performance; or (b) to comply with applicable laws or regulations. Company may modify or amend this Agreement at any time by posting access to details of any modifications or amendments to this Agreement at [https://funjoin.com/for-business/master-license-agreement].
Changes will not apply retroactively and generally will become effective 14 days after they are posted. However, changes addressing new functions for a Service or made for legal reasons will be effective immediately. If you don’t agree to any modified or amended terms in the Agreement, you must stop using the Services. Your continued use of the Software Products after the effective date of any changes constitutes your agreement to follow and be bound by such changes.
This agreement has an initial term of one year, and it shall automatically renew each year on the anniversary of the Effective Date (the “Anniversary Date”) for successive one (1) year periods unless terminated by either party on written notice at least ninety (90) days prior to an Anniversary Date (the “Term”). Notwithstanding anything to the contrary contained herein, Company may terminate this Agreement or any Preferred Pricing Quote for convenience and without liability (other than the repayment of any prepaid license fees for the remainder of the term after the effective date such termination for convenience) upon thirty (30) days prior written notice to Licensee.
D. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflicts of laws rules, and without regard to its location of execution or performance. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions or in small claims court, the Parties agree to endeavor first to settle the dispute in good faith by mediation for a period of sixty (60) days before resorting to binding arbitration administered by JAMS End Dispute and conducted in accordance with JAMS’ Streamlined Rules (“the Rules”), which are then in effect, under the following terms:
a. Any claims received after the applicable/relevant statute of limitations period has passed will be deemed null and void.
b. The matter may be attended to online/remotely and will be heard and determined by one arbitrator, mutually selected by the parties as set forth in the Rules, in Los Angeles County.
c. Each Party must pay its own attorneys’ fees in any mediation or arbitration, but the Parties will each bear one-half of the cost of the applicable filing fee and cost of the arbitrator, if any. The arbitrator will have the authority to award the prevailing Party attorneys’ fees in any arbitration.
d. All remedies and damages that would be available under the applicable law for the parties’ claims in a court proceeding are available to the parties through arbitration of their claims.
e. The arbitration must be conducted expeditiously. Unless otherwise agreed upon by the parties, discovery shall be limited by the arbitrator so as to maintain the arbitration as a speedy and economical method of dispute resolution.
f. Everything related to the arbitration proceeding, including, without limitation, any discovery, the hearing, the record of the proceeding and all communications and correspondence regarding the arbitration are confidential and must not be open or disclosed to any third party or the public, except to the extent both parties agree otherwise in writing, to the extent required in any other proceedings between the parties, or to the extent required in response to a governmental agency or legal process.
g. Nothing in this Section D may bar a Party from seeking injunctive relief to preserve the status quo pending an arbitration or mediation of the Parties dispute over a breach of any of the promises or agreements contained herein that will result in emergent irreparable and continuing damage to the other Party for which there will be no adequate remedy at law, and the other Party must be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
h. The arbitrator shall issue the arbitration award in writing, setting forth the reasons for the arbitrator’s decision. The decision of the arbitrator shall be final and binding upon the parties, and a judgment upon the decision rendered by the arbitrator may be entered in any court of competent jurisdiction.
i. EXCEPT AS PROVIDED HEREIN, THE PARTIES EACH WAIVE ANY RIGHT TO FILE A LAWSUIT, HAVE A TRIAL BY JURY, OR RESOLVE SUCH A DISPUTE IN ANY OTHER FORUM. THE PARTIES UNDERSTAND AND AGREE THAT THE ONLY REMEDY FOR ANY DISPUTE COVERED BY THIS PARAGRAPH SHALL BE THROUGH BINDING ARBITRATION, AND THAT THEY CANNOT PROCEED WITH SUCH A DISPUTE IN COURT OR ANY SIMILAR FORUM.
j. The provisions of this Section D must, to the extent applicable in accordance with their terms, continue in full force and effect and survive, notwithstanding any termination of this Agreement.
Upon any material breach by Licensee, including, but not limited to, any breach of the restrictions on Software Products use contained herein, Company may terminate this Agreement and the license granted hereunder, or suspend Company’s services to Licensee until such breach is cured. Termination or suspension will not be exclusive of any other remedy available under this Agreement or applicable law. Upon termination of this Agreement for any reason whatsoever, (i) the license granted Licensee shall immediately cease and terminate, (ii) Licensee shall immediately cease use of the Software Products and (iii) Licensee shall immediately make any payments due to Company.
F. TRIAL PERIOD; REFUNDS
During the first sixty (60) days after the Effective Date of your original master license agreement with Company (the “Trial Period”), Licensee may terminate this Agreement and receive a refund for the monthly base pricing in the Preferred Pricing Quote, upon notice to Company specifying the circumstances with as much detail as practical. Except as described in this Sections 2(C) and 2(F), the license fee is nonrefundable.
NOTWITHSTANDING SECTION 1.B OR ANYTHING TO THE CONTRARY CONTAINED HEREIN, DURING THE TRIAL PERIOD THE SOFTWARE PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
If this Agreement is terminated by Licensee during the Trial Period, Company shall refund in full the license fees paid under this Agreement. If this Agreement is terminated by Company in accordance with Section 2(E), Licensee shall immediately pay any unpaid fees covering the remainder of the term of this Agreement. In no event will termination relieve Licensee of Licensee’s obligation to pay any fees payable to Company for the period prior to the effective date of termination.
G. OUTAGES; ALTERNATIVE ACCESS
In the event of a failure or malfunction of the Company site for a continuous period of seventy-two hours or more such that Licensee cannot access Company for the purposes delineated herein (an “outage”), Company will use commercially reasonable efforts to provide alternative access to the Company System and Licensee Data. These steps may include, at Company’s option, using a different Internet host, data center or bandwidth provider. Any delays or failure in performance by any party under this Agreement shall not be considered a breach of this Agreement if, and to the extent, caused by occurrences beyond the reasonable control of the party affected, including, but not limited to, acts of God, governmental restrictions, data center outages, power outages, fire, flood, explosion or the like.
Any notices or other communications required or permitted hereunder shall be in writing and shall be sufficiently given if sent by overnight mail, registered mail or certified mail, postage prepaid, by facsimile (with receipt confirmed telephonically) or by hand, to the parties at the addresses set forth above or such other address as either party provides with reasonable advance notice. In the event that Licensee’s address for notice changes during the Term, Licensee shall promptly provide Company with such new address in accordance with this Section 2(H) of this Agreement.
If any provision of this Agreement shall be held invalid, unenforceable or void, a suitable and equitable provision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
J. USE OF LICENSEE NAME
Company shall be permitted to use Licensee’s name, and to generally disclose the services provided to Licensee hereunder, provided that Company does not disclose any Confidential Information relating to Licensee or its operations.
During the term hereof, Company agrees to maintain PCI compliance to the extent required by law in order to provide the services described under this Section 2(K) of this Agreement. Licensee is responsible for its individual PCI compliance and annual validation to its credit card services provider. Except for data collected through (i) Company (or its affiliate or subsidiary), (ii) the merchant processing partner designated by Company, or (iii) in explicitly designated, PCI compliant sections of the Software Products, Licensee shall not under any circumstances use the Software Products to collect or store credit card or bank account information of its users.
1. USE OF DESIGNATED MERCHANT PROCESSING PARTNER
If Licensee elects to process credit card payments or ACH e-check payments through Company, then Licensee shall do so by entering into a separate agreement with either (i) Company (or its affiliate or subsidiary) or (ii) the merchant processing partner designated by Company, which agreement shall contain such terms and conditions as Licensee and either (i) Company (or its affiliate or subsidiary) or (ii) such merchant processing partner agree upon from time to time, and provided further, if Licensee makes such election under this Section 2(K)(1), Licensee hereby authorizes Company to access and use the Licensee Data, including Licensee’s transaction records, statements, notices and other merchant processing data in the merchant processing partner’s back office platform and administrative and reporting tools and systems. Fees charged by payment processing providers may change from time to time upon thirty (30) days prior written notice.
2. USE OF NON-DESIGNATED MERCHANT PROCESSING PARTNER
If Licensee desires to process credit card payments or ACH e-check payments through the Software Products but not through a merchant processing partner designated by Company (“Non-Designated Processing Provider”), then Licensee must get written consent from Company, which consent may be withheld in Company’s sole discretion. Provided that Licensee obtains such consent from Company, then Licensee may select such Non-Designated Processing Provider and process payments through such Non-Designated Processing Provider; provided Licensee enters into a separate agreement with such Non-Designated Processing Provider which agreement shall contain any and all such terms and conditions for the provision of credit card processing as Licensee and such Non-Designated Processing Provider agree upon from time to time.
In exchange for Company permitting the Licensee to utilize the Software Products with a Non-Designated Processing Provider, Licensee shall pay Company a convenience fee (“Convenience Fee”) which Convenience Fee shall be a percentage of every dollar processed through the Non-Designated Processing Provider via the Software Products as set forth in a Preferred Pricing Quote, processed as incurred. Company reserves the right to increase the Convenience Fee in its sole discretion effective upon notice to Licensee.
3. SURCHARGE PROGRAM
If Licensee elects to charge a fee to one of its current or prospective customers for paying Licensee with a credit card (“Surcharge Program”), Licensee agrees to the following terms and conditions:
A. Compliance. Licensee’s participation in the Surcharge Program and all amounts charged by Licensee shall be in accordance with card network rules and applicable state and federal law, including without limitation regarding the amount of the surcharge, notification to Licensee’s acquiring bank and the card brands, disclosures to consumers, that the surcharge amount is not charged separately, that the cardholder has the opportunity to cancel the transaction after the disclosures are made, and that surcharges will not be imposed on debit or prepaid card transactions. Licensee shall comply with, and shall be solely responsible for, all of the following (each of which as amended from time to time by relevant authority): (a) federal, state, and local laws and regulations; and (b) rules promulgated by any regulatory authority or any payment card network. Licensee shall not charge a surcharge in any jurisdiction in which such fee is prohibited.
B. Indemnification. Licensee agrees to indemnify, defend, and hold Company and its officers, owners, employees, and representatives harmless for all liabilities, losses, claims, damages, costs, and expenses (including reasonable attorney’s fees) whenever arising or incurred that are caused or asserted to have been caused, directly or indirectly, by or as a result of: (a) Licensee’s surcharge activity; (b) Licensee’s products, services, and business practices; (c) any breach by Licensee or its employees or agents of any of the terms and conditions provided in this Agreement; and (d) any violation of any applicable law, regulation, rule, or standard by Licensee or its employees or agents.
C. Disclaimer and Limitations of Liability. Company makes no warranty of any kind, express or implied, related to the Surcharge Program or Company’s participation in any Surcharge Program, and Company expressly disclaims any and all representations and warranties, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, legal compliance, and non-infringement. Licensee acknowledges and agrees that it assumes all risk with respect to any Surcharge Program and its business practices, and that it is responsible to ensure that it is compliant with all laws, regulations, rules, and industry standards applicable to any surcharge activity. Company will not be liable for any direct, indirect, incidental special, or consequential damages, however arising, even if Company has been advised of the possibility of such damages.
This Agreement may be executed by facsimile, electronic signature, pdf or other electronic means in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one instrument binding on the parties, notwithstanding that all the parties are not signatories to the original or the same counterpart.
During the Term, Company will use commercially reasonable efforts to provide support and consultation by telephone, Company’s electronic ticketing system, and other means to Licensee and Authorized Users through two channels in accordance with the following:
Electronic Ticketing System Support – This is the most efficient way to submit and track support issues. Company strongly encourages Administrative Users to initiate all support requests through the Company Electronic Ticketing System. Electronic support is offered to all Authorized Users.
Telephone Consultation – Company also provides Telephone Consultation to help resolve support issues. Telephone support is offered to Administrative Users for additional pricing as set forth in the Preferred Pricing Quote.
The days and hours of operation for the above support and consultation can be found at [https://funjoin.com/for-business/resources/contact]).
Company provides one training and strategy sessions for each Software Product module licensed to Licensee hereunder at no additional cost and in accordance with the training policies and procedures set forth at [https://funjoin.com/for-business/resources/contact]) (“Training Policies and Procedures”). Sessions are scheduled at mutually convenient times during Phone Support Hours. Each session covers one or more specific Software Product module and shall be conducted in accordance with the Training Policies and Procedures. Licensee will designate one Administrative User to act as a single point of contact as a training coordinator (the “Specialist”) for the Licensee. The Specialist is obligated to ensure that all training sessions are attended by the Licensee organization member deemed most appropriate to receive the training on the Software Product module. The same Administrative User may act as the designated Licensee member for multiple Software Product modules. Licensee acknowledges and agrees that any additional trainings beyond the initial training per Software Product module or for which Licensee does not adhere to the Training & Strategy Policies and Procedures shall be provided at an hourly rate posted to [https://funjoin.com/for-business/resources/contact]. Licensee may designate one or more replacement Specialists in writing from time to time. Licensee agrees that all questions pertaining to a Software Product module shall initially be routed to the Specialist assigned to that particular Software Product module prior to contacting Company support. Sessions are provided as-is with no guarantees of performance or success.