This Master Subscription Agreement, together with the Policy Documents, governs your use of JRNI’s Services.
You accept this Agreement, by:
- clicking a box on our website indicating acceptance of this Agreement; or
- signing an Order Form or Statement of Work electronically or manually that references this Agreement.
In doing so, you agree to the terms of this Agreement. If the individual accepting this Agreement accepts on behalf of a company or other legal entity, that individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, the individual must not accept this Agreement and neither the individual nor any entity that it represents may use the Services.
This Agreement does not apply to any free beta or demonstration services that we may provide to you and any such services will be subject to separate terms and conditions.
This Agreement was last updated on 1st April 2020.
1 Definitions.
1.1 In this Agreement, unless the context otherwise requires, the following words have the following meanings:
“Affiliate” of a Party means any Person that directly or indirectly controls, is controlled by, or is under common control with any subsidiary or holding company of that Party.
“Agreement” means each Order Form or Statement of Work (including those agreed to in Clause 10.2) together with this Master Subscription Agreement, the Policy Documents, and any schedules, appendices and other documents referenced in this Agreement.
“Applicable Law” means, where applicable to a Party and relevant to this Agreement, any and all: (a) legislation, laws, statutes, decisions, rulings, codes, government policies, regulations, by-laws or licensing conditions (including Data Protection Laws); and (b) mandatory industry requirements and regulations, binding codes of practice, and decisions and directions of any relevant governmental or regulatory, co-regulatory or self-regulatory authority or agency of competent jurisdiction.
“Booking Service” means JRNI’s online bookings, appointments and events service (together with any Service Plan), and related services accessible at a web site or IP address designated by JRNI, or ancillary services rendered to you by JRNI, to which you are being granted access under this Agreement excluding the Implementation Services and any Professional Services.
“Confidential Information” means all information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Confidential Information does not include any information that: (i) is or becomes generally known to the public, other than due to Receiving Party’s breach of this Agreement; (ii) was rightfully known to the Receiving Party before obtaining it from the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and for which the Receiving Party can provide documentary evidence created at the same time as the development that verifies the development was independent.
“Customer” (also referred to as “you,” or “your”) means the Person accepting this Agreement, and in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means any data submitted or uploaded by Users or End Users to the Booking Service under the Customer's accounts and any Customer Personal Data.
“Customer Personal Data” means all Personal Data processed by JRNI on behalf of the Customer and its Affiliates under or in connection with this Agreement.
“Data Controller” means the entity which determines the purposes and means of the processing of Personal Data.
“Data Processing Addendum” or “DPA” means JRNI’s data processing addendum.
“Data Processor” means the entity which processes Personal Data on behalf of the Data Controller.
“Data Protection Laws” means any laws and regulations relating to privacy or the use or processing of data relating to natural persons.
“Documentation” means the standard user instruction materials describing the use and operation of the Booking Service that are provided in the Booking Service's “Help” files, together with any standard specification documents describing the nature and functionality of the Services (including any document describing JRNI Service Plans) which JRNI may issue to its customers and modify from time to time.
“End User” means any end-users that make a booking using your implementation of the Booking Service.
“Fees” means the fees for the Services set out in an Order Form.
“Force Majeure” means any event which prevents, hinders or delays either Party from performing any or all of its obligations (except for payment obligations), which is beyond the reasonable control of the affected Party and which may include nationwide strikes, lock-outs or other industrial disputes, nuclear accident, war, terrorist activity, riot, civil commotion, malicious damage, epidemic, pandemic, compliance with any new Applicable Law or change in Applicable Law, breakdown of plant or machinery, internet delays, failures or connectivity issues, fire, flood, storm or default of suppliers or sub-contractors (but only where such supplier or sub-contractor’s default is itself attributable to force majeure as set out here).
“Implementation Services” means any implementation of the Booking Service for the Customer, as detailed and agreed in an Order Form or Statement of Work.
“Insurance Statement” means JRNI’s statement of its insurance cover.
“Intellectual Property Rights“ means: (i) patents; (ii) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases, design rights (whether registered or unregistered); (iii) trademarks, service marks, internet domain names, trade dress, and trade names, together with all associated goodwill; (iv) registrations, applications, renewals and extensions for any of the items in (i)-(iii); (v) know-how and trade secrets; and (vi) rights of privacy and publicity, as well as other forms of protection of a similar nature anywhere in the world whether or not registered or registerable.
“JRNI” (also referred to as “we”, “us,” or “our”) means the JRNI company described in Clause 21 unless a different entity is named in the Order Form.
“JRNI Materials” means the Services, the Documentation, and all technology, software, information, products and services contained in or made available to you by or on behalf of JRNI.
“Licence Administrators” means those Users you designate who are authorised to purchase Subscriptions by executing Order Forms and to create User accounts and otherwise administer your use of the Booking Service.
“Order Form” means the ordering document or online order evidencing Subscriptions for the Services that is entered into by the Parties and specifies the number of User licences (if applicable) and other services contracted for, applicable fees, billing periods, and other charges as agreed by the Parties.
“Party” means each of JRNI and Customer, referred to together as the “Parties”.
“Person” means any: (i) individual; or (ii) partnership, firm, corporation, limited liability company, joint venture, association, trust, unincorporated organization, or other legal entity or organization.
“Personal Data” means any information relating to: (i) an identified or identifiable natural person; and (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws).
“Policy Documents” means the DPA, the SLA, the Insurance Statement, JRNI’s privacy policy, cookie policy, website terms of use, and any other policy or compliance documentation which may be published by JRNI on its website from time to time.
“processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and “process” shall be construed accordingly.
“Professional Services” means any services other than the Booking Service or Implementation Services as detailed and agreed in an Order Form.
“Renewal Term” means a subsequent additional period equal to the expiring Subscription Term or one year (whichever is shorter), unless different terms are set out in the Order Form.
“Service Level Agreement” or “SLA” means JRNI’s standard service level agreement, as amended by JRNI from time to time.
“Services” means the services to which you have subscribed as set out in an Order Form and which may include Implementation Services, Professional Services, and the Booking Service.
“Service Plan” means the service plan you have elected to receive in respect of the Booking Service, as set out in the Order Form and described in the Documentation from time to time.
“Statement of Work” means a document describing in detail how the Services will be carried out including, but not limited to, the responsibilities of the Parties and the timelines.
“Sub-Processor” means a third party subcontractor or Affiliate appointed by JRNI to process Customer Personal Data.
“Subscription” means each subscription for a Service as set out in the Order Form.
“Subscription Term” means the period between the dates indicated in the Order Form as the ‘Subscription Start Date’ and the ‘Subscription End Date’ for the relevant Subscription.
“Term” means all Subscription Terms together with all Renewal Terms (if applicable).
“Users” means your employees, representatives, consultants, contractors and agents authorised to use the Booking Service and who have been supplied user identifications and passwords by you (or by JRNI at your request).
2 Order Forms and Subscription Term.
2.1 This Agreement shall govern all online and offline Order Forms and shall commence either (i) on the date specified on an Order Form or (ii) on the date we send you an email confirming our acceptance of your online order.
2.2 To purchase our Services through our website you will be required to create an account and choose a Subscription and Service Plan using the online Order Form. After we receive your online Order Form, we will send you an email to invite you to activate your account. This email does not mean that the Order Form has been accepted. The Order Form shall only be deemed to be accepted when we send you an email accepting the Order Form and confirming the details of your Subscription.
2.3 This Agreement shall, unless terminated in accordance with its express terms, continue until the expiry of the last Subscription as set out in the final Order Form.
2.4 Each Subscription shall commence on the Subscription Start Date and shall, unless terminated in accordance with the express terms of the relevant Order Form, continue for the Subscription Term.
2.5 Unless different terms are set out in the Order Form, each Subscription shall automatically renew for the Renewal Term and then for subsequent consecutive Renewal Terms, unless either Party notifies the other Party of its election not to renew, as provided in Clause 2.6. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at JRNI’s applicable list price in effect at the time of the applicable renewal.
2.6 You may elect not to renew a Subscription by notifying JRNI in writing at least 30 days prior to the expiration of the applicable Subscription Term or then-current Renewal Term. JRNI may elect not to renew a Subscription by notifying you in writing at least 180 days prior to the expiration of the applicable Subscription Term or then-current Renewal Term. Where either Party elects to renew only part of an Order Form, JRNI may re-issue an Order Form to reflect the changes to the Services.
2.7 Termination of this Agreement shall terminate all Subscriptions in effect under this Agreement, but termination of any Subscription(s) shall not affect this Agreement or any other Subscription.
3 JRNI Responsibilities
3.1 JRNI, during the relevant Term, shall make the Services available to you in accordance with the applicable Order Form.
3.2 We shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week except for maintenance, and we shall use commercially reasonable efforts to give you notice of any scheduled maintenance.
3.3 We will, as part of the Services, provide you with our standard customer support services in accordance with the SLA that is in effect at the time that the Services are provided. We may amend the SLA in our sole and absolute discretion from time to time.
3.4 You acknowledge and agree that JRNI relies on its Affiliates and third party service providers in order to provide the Services, and that such third parties may be based in different jurisdictions and shall have access to Customer Data in those jurisdictions. For example, JRNI may use:
(a) Affiliates of JRNI in the UK, USA and Australia in order to provide technical support in accordance with the SLAs;
(b) technology companies (e.g. providers of messaging tools) in the USA in order to send confirmation and reminder texts and emails to End Users which may be routed via servers outside the EEA;
(c) professional services partners in the EEA in order to build elements of a Customer’s booking journey, configure a Customer’s environment or carry out administrative tasks (such as uploading User information) for Customers;
(d) development partners in the EEA in order to build elements of the Booking Service or add features and functionality.
3.5 JRNI shall remain liable for the acts and omissions of any third party engaged by it in the provision of the Services, and JRNI’s dealings with Sub-Processors and transfers of Customer Personal Data are governed by the DPA.
4 Licence.
4.1 Subject to the terms of this Agreement, JRNI hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable (in accordance with Clause 12), worldwide right to: (a) access and use the Booking Service solely for your own internal business purposes during the Term under the Subscriptions set out in an Order Form; and (b) use the JRNI Materials solely as required to enable you to access and use of the Booking Service in accordance with this Agreement. Users and End Users (including those of your Affiliates) may access and use the JRNI Materials solely for the purposes described in this Clause 4.1. You shall ensure that Users comply with your obligations under this Agreement, and you are responsible for the use and misuse of the Booking Service and JRNI Materials by your Users and End Users. A breach by any of your Affiliates or Users of this Agreement will be deemed a breach by you of this Agreement.
4.2 JRNI reserves all rights in and to the JRNI Materials not expressly granted to you in this Clause 4. You acknowledge that as between you and JRNI, JRNI is and will be the exclusive owner of all right, title, and interest in and to the JRNI Materials, including all Intellectual Property Rights.
4.3 JRNI may from time to time, in its sole discretion, make any changes to the JRNI Materials that it deems necessary or reasonable to:
(a) maintain or enhance the quality or delivery of JRNI’s Services to its customers; or
(b) to comply with Applicable Law.
5 Restrictions.
5.1 Except to the extent expressly stated otherwise in this Agreement, you shall not:
(a) alter, adapt, reproduce, modify, create derivative works based on, reverse engineer, decompile, reverse compile, reverse assemble, translate, or disassemble all or any portion of the JRNI Materials;
(b) license, sublicense, sell, lease, transfer, distribute, disclose, or otherwise commercially exploit or make available to any Person the JRNI Materials (including use of the Booking Service to operate any timesharing, service bureau, or similar business);
(c) access or use the JRNI Materials to create, market, or distribute a competitive product or service or otherwise conduct a competitive analysis;
(d) build a product using similar ideas, features, functions or graphics of the JRNI Materials other than for internal use within your business and by your employees and Affiliates only, and subject always to Clause 9 (Intellectual Property Rights);
(e) copy any ideas, features, functions or graphics of the JRNI Materials;
(f) enter into any agreement with, or make any representation to, any other Person that conflicts with, results in any breach of, or constitutes a default under, this Agreement;
(g) remove, alter, or obscure any Intellectual Property Rights notice or other restrictive notice or legend contained or included in or on any JRNI Materials;
(h) contest, challenge, or otherwise make any claim or take any action adverse to JRNI’s ownership of, or interest in, the JRNI Materials, including the Intellectual Property Rights in and to them;
(i) bypass or breach any security device or protection used by the JRNI Materials or access or use the JRNI Materials other than in accordance with the terms of this Agreement;
(j) input, upload, transmit, or otherwise provide material in or through the Services that are unlawful, obscene, infringing, or that contain viruses, worms, Trojan horses, or other harmful or malicious computer code, files, scripts, agents, or programs;
(k) attempt to gain unauthorized access to the Services or its systems or networks; or
(l) interfere with or disrupt the integrity or performance of the Services or the data contained in them.
6 Responsibilities.
6.1 You shall:
(a) provide JRNI with: (i) all necessary cooperation in relation to this Agreement; and (ii) all necessary access to such information as may be required by JRNI to provide the Services, including Customer Data, security access information and network information;
(b) carry out all your responsibilities under this Agreement in a timely and efficient manner and comply with the Policy Documents;
(c) obtain and maintain all third party licences, consents, and permissions which relate to your business and which may be necessary in order for you to benefit from the rights granted under this Agreement and for JRNI, its contractors, and agents to perform their obligations under this Agreement. Details of third party software requirements necessary to use the Booking Service are set out in the Documentation; and
(d) ensure that your network and systems comply with the relevant specifications provided by JRNI from time to time.
6.2 In the event of any known or suspected unauthorized use of any User account, or of the Booking Service, or any other known or suspected breach of security, you shall: (i) report such use to JRNI immediately; (ii) use reasonable efforts to stop immediately any copying or distribution of JRNI Materials; and (iii) not impersonate another User or provide false information to gain access to or use any JRNI Materials.
6.3 In relation to the Users:
(a) where a maximum number of Users is set out in an Order Form, you shall ensure that the number of actual Users you authorise to access and use the Booking Service and the Documentation does not exceed the maximum number of Users set out in the Order Form;
(b) you will not allow any User login to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the JRNI Materials;
(c) where JRNI reasonably considers that you have provided access to the Booking Service to any individual who is not a User, then without prejudice to JRNI's other rights, JRNI may suspend such User’s access and you shall promptly disable such passwords and JRNI shall not issue any new passwords to any such individual; and
(d) where JRNI can demonstrate that you have underpaid any Fees to JRNI then, without prejudice to our other rights, you shall pay to JRNI an amount equal to such underpayment as calculated in accordance with the prices set out in an Order Form within 10 days of the date of the request by JRNI.
6.4 The Booking Service may offer you the ability to communicate with others by sending messages, including email and text messages. You will not use any of the JRNI Materials for any purpose which is illegal, unlawful, offensive, discriminatory, harassing, likely to bring any of our software or services into disrepute or cause them to be black-listed, for spamming, or in any other way or for any other purpose which is, in our reasonable opinion, undesirable. You will only send messages to people who have given you their express consent to receive such messages. You are exclusively responsible for all communications sent using the Booking Service, including all fees and charges associated with such messages, and any liability that may arise from such communications. You shall comply with your internal policies concerning the use and disclosure of personal information and all Applicable Laws.
7 Insurance.
7.1 During the Term, JRNI shall maintain in force insurance cover as specified in the Insurance Statement.
8 Customer Data.
8.1 You, not JRNI, have sole responsibility for the entry, deletion, correction, accuracy, quality, integrity, legality, reliability, appropriateness, and right to use and transfer the Customer Data. JRNI is not responsible for any of the foregoing or for any destruction, damage, loss, or failure to store any Customer Data beyond its reasonable control or resulting from any failure in data transmission or operation of the Booking Service by you.
8.2 JRNI is certified under ISO 27001 and shall maintain an information security program for the Services that complies with the ISO 27001 standards or such other standards as are substantially equivalent to ISO 27001.
8.3 If JRNI processes any Customer Personal Data on your behalf when performing its obligations under this Agreement, the Parties acknowledge that you shall be the Data Controller and JRNI shall be a Data Processor and in any such case:
(a) you shall ensure that you are entitled to transfer the relevant Customer Personal Data to JRNI so that JRNI may lawfully process and transfer the Customer Personal Data in accordance with this Agreement on your behalf;
(b) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such processing and transfer as required by all applicable Data Protection Laws;
(c) each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Customer Personal Data or its accidental loss, destruction or damage and comply with the DPA;
(d) notwithstanding any other provision of this Agreement, but subject always to the provisions of the DPA, nothing shall prevent JRNI from disclosing Customer Personal Data or Customer Data to its Affiliates and third party service providers as necessary to provide the Services in accordance with Clause 3, and otherwise in order to comply with Applicable Law or at the request of a governmental, regulatory or supervisory authority.
8.4 You are solely responsible and liable for any transfer of Customer Data made by you (or made by JRNI at your request) from the Booking Service to a third party and for ensuring that such transfer is in compliance with the Parties' obligations under the Data Protection Laws.
9 Intellectual Property Rights.
9.1 As between JRNI and you:
(a) JRNI owns all right, title and interest, including all related Intellectual Property Rights, in and to the JRNI Materials and any modification or enhancement of or to the JRNI Materials;
(b) you own all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
9.2 You grant to JRNI a worldwide, royalty free licence to access, use, transmit and disclose the Customer Data for the limited purpose of JRNI providing, and supporting your use of, the Services.
9.3 In the event that you engage us to carry out Professional Services which will involve the creation of new software or technology on a bespoke basis for you, we will negotiate and agree separate terms regarding the ownership of the Intellectual Property Rights in those new materials and those terms will be documented in the relevant Statement of Work or Order Form.
9.4 Without limiting Clause 5.1(a), to the extent that any JRNI Material (or any part of any JRNI Material) is modified or enhanced and the Intellectual Property Rights in such modification or enhancement are vested in you or any party acting on your behalf, then you hereby assign (or shall procure an assignment) to us all Intellectual Property Rights in and to such modification or enhancement immediately from creation (and you must do all things necessary to give effect to that assignment).
10. Payment of Fees.
10.1 You shall pay all Fees and charges for the Services in accordance with the terms contained in the applicable Order Form. Except as set out in Clauses 12.3, 12.5 and 14.6, Fees are non-refundable. You are responsible for paying the Fees for all Subscriptions specified in an Order Form, whether or not such Subscriptions are used. Fees are fixed during the Subscription Term and quantities purchased cannot be reduced during the Subscription Term and are not dependent on future functionality. JRNI may increase the Fees for any Renewal Term by providing written notice to you (including by e-mail) at least 30 days prior to the commencement of the then current Renewal Term.
10.2 Your designated Licence Administrators may add Subscriptions by executing an additional Order Form online or in hardcopy form. Added Subscriptions will be subject to the following: (a) added Subscriptions for a particular Service will be coterminous with the applicable original Subscription Term for that Service; (b) the Fees for the added Subscriptions will be the same as the Fee applicable to your then-existing Subscription under the applicable original Order Form, pro-rated for the remainder of the Subscription Term or Renewal Term (as applicable); and (c) Subscriptions added in the middle of a billing month will be charged in full for that billing month.
10.3 All Fees must be paid in the currency set out in the Order Form and are not subject to any deductions, credits, or other set-offs.
10.4 You shall provide JRNI with complete and accurate credit card details, approved purchase order information acceptable to JRNI, or such other billing and contact information as JRNI may require and you shall promptly notify JRNI of any changes to it.
10.5 Where you have provided credit card details to JRNI, you hereby authorise JRNI to bill such credit card:
(a) immediately, a pre-authorisation amount of £1/ $1, which will then be refunded; and
(b) on each due date for payment of the Fees as set out in the relevant Order Form.
10.6 Where you have provided approved purchase order or billing and contact information other than a credit card, JRNI shall invoice you on the dates set out in the Order Form or Statement of Work and you shall pay each invoice within 30 days after the date of such invoice to the bank account nominated by JRNI unless different payment terms are set out in the relevant Order Form or Statement of Work.
10.7 If you wish to dispute any Fees contained in any invoice, you must notify JRNI in writing prior to the date that payment of such invoice is due or the invoice will be deemed correct and you waive your right to dispute it. Where you dispute any invoice, you shall pay any undisputed amounts in accordance with the terms of this Agreement.
10.8 All amounts payable by you under this Agreement are exclusive of taxes and similar assessments. As between the Parties, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on JRNI’s income.
10.9 If you fail to pay any invoice when due, then without limiting JRNI’s rights or remedies, your liability shall be increased to include interest at a rate equal to the Bank of England base rate plus 2% per annum, or the maximum rate permitted by applicable law, whichever is lower, plus expenses of collection.
11. Suspension.
11.1 JRNI may suspend your or a User’s use of the Booking Service if:
(a) we determine in our reasonable discretion that you or any User is in breach of any provision of this Agreement;
(b) your use of the Services is causing material harm to JRNI or its customers; and/or
(c) any payment is not received by JRNI within fifteen (15) days after notice to you of such late payment.
11.2 We will use commercially reasonable efforts to notify you in advance of any such suspension, and in any event within 24 hours following any such suspension. JRNI will use commercially reasonable efforts to limit the suspension to the offending Users or portion of the Service where applicable. You shall assist JRNI in denying access to any User that JRNI has identified as being unauthorised.
11.3 Reinstatement of the Services will occur upon proven compliance with this Agreement (in JRNI's reasonable opinion). Any suspension will not relieve you of your obligation to pay any Fees during such suspension.
12. Termination.
12.1 A Party may terminate this Agreement in its entirety or in relation to a specific Subscription with immediate effect at any time by providing written notice of termination to the other if the other Party:
(a) commits a material breach of this Agreement, and the breach continues unremedied for a period of 30 days (or 15 days where the breach relates to JRNI's Intellectual Property Rights) after receiving notice describing the nature of the breach. You acknowledge that your failure to pay any Fees promptly when due is a material breach. A material breach of an Order Form by a Party shall not entitle the other Party to terminate the Agreement, only the applicable Order Form;
(b) commits a material breach of this Agreement which is incapable of remedy;
(c) is subject to any of the following:
(i) is unable, deemed or declared to be unable, or admits to an inability, to pay its debts as they fall due;
(ii) suspends, or threatens to suspend making payments on any of its debts by reason of actual or anticipated financial difficulties or commences negotiations with any of its creditors;
(iii) becomes insolvent or unable to pay its debts as they mature;
(iv) makes an assignment for the benefit of its creditors;
(v) is dissolved or liquidated, or takes any corporate action for those purposes;
(vi) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
(vii) seeks relief or if proceedings are commenced against that other Party, or on its behalf, under any bankruptcy, insolvency, or debtors’ relief law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings; or
(viii) any event occurs, or proceeding is taken with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Clause 12.1(c).
12.2 Subject to Clause 12.5(b), you may terminate this Agreement by giving 30 days' prior written notice to JRNI.
12.3 JRNI may terminate this Agreement by giving 180 days’ prior written notice to the Customer at any time, provided that JRNI shall refund to the Customer any Fees paid in advance in respect of any unexpired portion the relevant Subscription Term(s) or current Renewal Term(s) as at the effective date of termination.
12.4 Upon any termination of this Agreement in its entirety or in relation to a specific Order Form or Subscription: (i) all rights and licences granted to you under this Agreement or the terminated Order Form or Subscription (as applicable) shall terminate, and you shall promptly cease exercising those rights and licences; (ii) you shall take all actions necessary or appropriate to destroy or return to JRNI all copies of the JRNI Materials in your or your Users’ possession relating to the Agreement or Order Form or Subscription (as applicable); and (iii) you shall promptly pay to JRNI any amounts due under this Agreement or the terminated Subscription or Order Form (as applicable).
12.5 Upon any termination by:
(a) you in accordance with Clauses 12.1(a) or 12.1(b), JRNI shall issue to you a pro-rata refund for payment previously received by JRNI in relation to the affected Order Forms or Subscriptions corresponding to any period after the effective date of such termination;
(b) you in accordance with Clause 12.2, you shall pay any unpaid Fees covering the remainder of the applicable Term(s); and
(c) by JRNI in accordance with Clauses 12.1(a) or 12.1(b) you shall pay any unpaid Fees covering the remainder of the applicable Term(s).
12.6 In no event will any termination relieve you of the obligation to pay any Fees payable to JRNI for the period prior to the effective date of termination.
12.7 Upon your request, which must be tendered at the time of termination and subject to your payment of all outstanding Fees, JRNI will, within 30 days following the termination of this Agreement in its entirety or in relation to a specific Order Form or Subscription, make available to you a file of the Customer Data in JRNI’s possession at such time relating to the Agreement, Order Form or Subscription (as applicable). You acknowledge that JRNI has no obligation to retain, and JRNI may destroy at its discretion, Customer Data more than 30 days after termination of this Agreement, Order Form or Subscription.
12.8 Clauses 4.2, 4.3, 5, 8.1, 9, 10, 12.5, 12.9, 13, 14, 16, 18, and 20 survive any termination of this Agreement.
13. Representations & Warranties.
13.1 Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
13.2 JRNI represents and warrants that: (a) the Booking Service will perform substantially in accordance with the Documentation under normal use and circumstances; (b) it will perform the Services with reasonable skill and care; (c) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement; and (d) it will use commercially reasonable efforts to detect and remove or neutralize viruses or other malicious code introduced into the Booking Service by JRNI that could have an adverse effect on your use of the Booking Service. In the event JRNI breaches any of the foregoing representations and warranties, your sole and exclusive remedy, and JRNI’s sole liability, will be for JRNI to remedy the non-performance or non-compliance of the Booking Service and/or remove or neutralize the virus or malicious code. If, despite its exercise of commercially reasonable efforts, JRNI is unable to remedy the non-performance or non-compliance of the Booking Service or remove or neutralize the virus or malicious code, then you may terminate this Agreement for cause in accordance with Clause 12.1.
13.3 You represent and warrant that: (i) you have made all disclosures and will obtain and maintain all necessary licences, consents, and permissions necessary to provide the Customer Data to JRNI and to allow JRNI to store and process the Customer Data in accordance with the terms of this Agreement and all Applicable Laws; and (ii) you are and will remain fully compliant with all Applicable Laws.
13.4 Except for the express warranties set out in Clauses 13.1 and 13.2, the JRNI Materials are provided “as is” and JRNI hereby disclaims all warranties, whether express, implied, statutory, or other, and JRNI specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, (a) JRNI makes no warranty of any kind that the JRNI Materials or any products or results or the use of them, will meet your or any other person’s requirements, be available 24/7, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code or viruses, or error free; and (b) JRNI disclaims all liability arising from or relating to (i) loss of, corruption of or unauthorized access to data (save to the extent that such loss, corruption or access is due to a breach by JRNI of its obligations under this Agreement) or decisions made by you or any User based on use of the Services (ii) misuse of Customer Data by the Customer or a third party (excluding any Sub-processor); and (iii) Customer Data not specifically requested by JRNI.
14 Indemnification.
14.1 Subject to Clause 14.3, JRNI shall indemnify and defend you from and against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) (collectively, “Losses”) arising out of or in connection with any third party claim that any of the JRNI Materials, as provided by JRNI to you, infringe the Intellectual Property Rights of that third party (each, an “IP Claim”).
14.2 You shall indemnify and defend JRNI, its Affiliates, and its and their officers, directors, shareholders, employees, contractors, licensors, attorneys, and agents (the “JRNI Indemnified Parties”) from and against any and all Losses arising out of or in connection with a claim by a third party arising out of or in connection with: (i) your, your Users’ or your End Users' access to or use of any JRNI Materials where such use is not in accordance with this Agreement; (ii) JRNI’s use of any Customer Data in accordance with this Agreement; or (iii) any IP Claim to the extent it is a Customer IP Claim (as defined below).
14.3 JRNI will have no obligation to indemnify or defend you for any IP Claim to the extent arising out of or in connection with: (i) your use of the JRNI Materials in combination with other materials, software, Intellectual Property Rights, services, technology or processes not provided or approved by JRNI, where there would be no basis for such IP Claim but for the combination; (ii) a modification, improvement, or enhancement of, or creation of any derivative work based on, the Booking Service by anyone other than JRNI; (iii) your breach of this Agreement or use of the JRNI Materials other than as expressly permitted under this Agreement; (iv) Services performed in accordance with your specific mandated instructions; or (v) your failure to implement a work-around, release, update, or other modification to or for the JRNI Materials as provided or directed by JRNI (the IP Claims described in (i)-(v) being the “Customer IP Claims”).
14.4 In the defence, settlement or avoidance of any IP Claim, and in addition to but not in lieu of any other obligation set out in this Clause 14, JRNI may, at its option and (subject to your obligations under Clause 14.2) its expense: (i) replace or modify any allegedly infringing JRNI Materials with non-infringing items and/or services that are reasonably comparable to the JRNI Materials being replaced; and/or (ii) obtain a licence for you to continue using and receiving any of the allegedly infringing JRNI Materials.
14.5 If JRNI determines in its good faith business judgment that the remedies set out in Clauses 14.4 (i) and (ii) are not available on commercially reasonable terms JRNI shall notify you and either Party may immediately terminate the applicable Subscription, Order Form or this Agreement. Upon the receipt of such notice, you shall stop using and return to JRNI all allegedly infringing JRNI Materials. JRNI may stop performing all allegedly infringing Services and, in such circumstances, shall refund any monies paid by you for the infringing components of the JRNI Materials less a reasonable allowance for the period of time you used or received such components.
14.6 Each Party seeking indemnification under this Agreement (each an “Indemnified Party”) will give prompt notice to the other Party (the “Indemnitor”) of any demand for indemnification that is based on a claim asserted by any Person other than the Indemnitor (a “Claim”), as well as copies of any papers served on the Indemnified Party relating to that Claim, but the Indemnified Party’s failure to provide or delay in providing that notice or those copies will not release the Indemnitor from its obligations under this Clause 14, except to the extent the failure or delay materially prejudices the Indemnitor. The Indemnitor has the exclusive right to conduct the defence of any Claim and any negotiations for its settlement, except that: (i) the Indemnitor may not bind any JRNI Indemnified Party or Customer (as applicable), to any agreement, or otherwise prejudice or impair the rights of any JRNI Indemnified Party or Customer (as applicable), without the Indemnified Party’s prior written consent, which the Indemnified Party may not unreasonably withhold or delay; (ii) the Indemnified Party will assist the Indemnitor in its defence of any Claim, at the Indemnitor’s request and expense; (iii) the Indemnified Party may participate at its expense in Indemnitor’s defence of or settlement negotiations for any Claim with counsel of the Indemnified Party’s own selection; and (iv) the Indemnified Party may, at its option and the Indemnitor’s expense, and on notice to the Indemnitor, conduct the defence of and any settlement negotiations for any Claim in place of the Indemnitor if the Indemnitor fails to promptly defend the Claim as required in this Clause 14. At the Indemnified Party’s request and the Indemnitor’s expense, and in addition to the Indemnitor’s other obligations under this Agreement, the Indemnitor shall assist the Indemnified Party with the defence of any Claim for which the Indemnified Party conducts the defence under this Clause 14.6.
14.7 You acknowledge that this Clause 14 states JRNI’s entire responsibility and liability and your sole and exclusive remedy for any actual or alleged infringement of third party Intellectual Property Rights in connection with this Agreement.
15. Force Majeure and Internet Delays.
15.1 If either Party is prevented, hindered or delayed from performance of any of its obligations under this Agreement by Force Majeure (the “Affected Party”), the Affected Party shall as soon as reasonably possible serve notice in writing on the other Party specifying the nature and extent of the circumstances giving rise to Force Majeure. The Affected Party shall, subject to service of such notice, have no liability in respect of any delay in performance or any non-performance of any such obligation save for any payment obligation which shall continue in full force and effect.
15.2 If the Affected Party is prevented, hindered or delayed from performance of all or substantially all of its obligations under this Agreement by Force Majeure for a continuous period of more than sixty (60) days in total, the other Party may terminate this Agreement immediately on service of written notice upon the Affected Party, in which case neither Party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist and, for the avoidance of doubt, in such circumstances the provisions of Clause 12 relating to the consequences of termination shall apply.
15.3 JRNI is not and will not be responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement.
15.4 You are solely responsible for providing and maintaining your internet connection and information technology environment, networks and systems. Use of the Booking Service may be subject to limitations, delays and other problems beyond JRNI’s control, including those inherent in use of the internet.
16. Limitation of Liability.
16.1 NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE; (II) FRAUD, FRAUDULENT MISSTATEMENT, OR FRAUDULENT MISREPRESENTATION; (III) ANY LIABILITY WHICH MAY NOT BE LIMITED OR EXCLUDED AS A MATTER OF LAW; OR (IV) ANY CLAIMS ARISING UNDER A PARTY'S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO CLAUSE 14. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE YOUR LIABILITY FOR YOUR BREACH OF CLAUSE 5 OR YOUR OBLIGATION TO PAY ANY UNDISPUTED FEES.
16.2 SUBJECT TO CLAUSE 16.1, NEITHER PARTY SHALL BE LIABLE (IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) FOR: (I) ANY LOSS ARISING FROM OR IN CONNECTION WITH: (a) LOSS OF REVENUES, PROFITS (WHETHER DIRECT OR INDIRECT), CONTRACTS OR BUSINESS, OR FAILURE TO REALIZE ANTICIPATED SAVINGS, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE ARISING FROM YOUR USE OF THE BOOKING SERVICE, INCLUDING THE INABILITY TO USE THE BOOKING SERVICE; (b) LOSS OR CORRUPTION OF DATA; (c) UNAUTHORIZED ACCESS TO DATA OUTSIDE OF EITHER PARTY’S REASONABLE CONTROL; OR (II) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES, SUFFERED OR INCURRED BY THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH PARTY KNEW OF, HAD BEEN ADVISED OF THE POSSIBILITY OF, OR FORESEEN SUCH DAMAGES IN ADVANCE.
16.3 SUBJECT TO CLAUSE 16.1 AND EXCEPT AS SET OUT IN THE REMAINDER OF THIS CLAUSE 16.3, NEITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH ANY ORDER FORM WILL EXCEED 120% OF THE AMOUNT ACTUALLY PAID BY YOU UNDER THAT ORDER FORM IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. WITH RESPECT TO A PARTY’S BREACH OF ITS OBLIGATIONS SET OUT IN CLAUSE 17 (CONFIDENTIALITY) OR THE DATA PROCESSING ADDENDUM, NEITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THE RELEVANT ORDER FORM WILL EXCEED THE LESSER OF £1,000,000 (ONE MILLION POUNDS STERLING) AND FIVE TIMES THE AMOUNT ACTUALLY PAID BY YOU UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
17. Confidentiality
17.1 The Receiving Party will use at least the same degree of care in protecting Confidential Information of the Disclosing Party that the Receiving Party uses to protect the confidentiality of its own Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party shall: (i) not use any Confidential Information of the Disclosing Party for any purpose other than as permitted under this Agreement; and (ii) limit access to Confidential Information of the Disclosing Party to its, and its Affiliates’, employees and contractors who need such access to perform their duties to the Disclosing Party and who owe a duty of confidentiality to the Disclosing Party and shall ensure that it includes equivalent contractual terms on confidentiality with such third party. Your Confidential Information includes your Customer Data. JRNI’s Confidential Information includes the JRNI Materials, any Order Form, Statement of Work and the terms of this Agreement.
17.2 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Applicable Law to do so, on condition that the Receiving Party uses commercially reasonable efforts to give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, in order to permit the Disclosing Party to contest or limit the disclosure.
17.3 Notwithstanding any other provision of this Agreement, JRNI may: (i) monitor use of the Booking Service to (a) determine your compliance with the terms of this Agreement and (b) provide support and other requested Services; (ii) utilise any Customer Data on an anonymous and aggregated basis in connection with our development of any products, strategies, or services; (iii) anonymise any Customer Data or other information and aggregate it with other information and data for any further use or purpose related to JRNI’s business; and (iv) use any information gathered by JRNI in connection with providing the Services as is necessary to comply with Applicable Laws or in the course of any litigation.
18. Notice.
18.1 JRNI may give notice regarding operational aspects of the Booking Service and changes to the Documentation by means of a general notice on the Booking Service, electronic mail to your email address on record with JRNI, or both.
18.2 Any other notice by one Party to the other under this Agreement will be in writing sent by first class mail, return receipt requested, or nationally recognised overnight delivery service.
18.3 Any notice will be deemed to have been given upon receipt (if sent by overnight delivery service), five (5) business days after mailing (if sent by first class mail) or twelve (12) hours after sending (if sent by e-mail).
18.4 Notice to JRNI must be addressed to the relevant contact as set out in Clause 21. Notice to you will be addressed to your address set out in an Order Form.
19. Assignment; Change in Control.
19.1 Subject to Clause 20.3 neither Party may assign, delegate, or otherwise transfer this Agreement, or any rights, remedies, or obligations under this Agreement, (including by forward or reverse merger, consolidation, dissolution, or operation of law, and whether voluntarily or by a governmental authority’s action or order) without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that either Party may assign, delegate, or otherwise transfer this Agreement or any rights, remedies, or obligations under this Agreement without the other Party’s consent to: (i) an Affiliate; or (ii) an acquirer of all or substantially all of the equity interests, assets, or business to which this Agreement relates of the assigning Party (including by a merger, consolidation, or operation of law). Any purported assignment, delegation or other transfer in violation of this Clause 19.1 is void. You acknowledge that your assignment, delegation, or other transfer of this Agreement will not relieve you of your obligations under this Agreement. This Agreement binds and inures to the benefit of the Parties and their respective permitted assignees and successors.
19.2 You shall notify JRNI in writing, where practicable in advance of, but in any event as soon as reasonably possible after the occurrence of, any actual or proposed change in control of you. Where such change of control results or would result in a direct competitor of JRNI directly or indirectly owning or controlling 50% or more of you, JRNI shall be entitled to terminate this Agreement for cause immediately upon written notice to you.
20. General.
20.1 Interpretation. The descriptive headings in this Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. Unless the context otherwise requires, words in the singular include the plural and vice versa and words in one gender include any other gender. A reference to a statute or statutory provision includes any legislation effected under it and any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it, whether such statute or statutory provision comes into force before or after the date of this Agreement. A reference to any Party includes its successors in title and permitted assigns, and a Party, Clause, paragraph, schedule and appendix is a Party to, a Clause, schedule or an appendix to this Agreement and a paragraph of an appendix. The words “includes” or “including” are not limiting and are to be read as if they were followed by the phrase “without limitation.” “Sole discretion” means, with respect to any determination to be made under this Agreement by a Party, the sole and absolute discretion of that Party, without regard to any standard of reasonableness or other standard by which the determination of that Party might be challenged. “Reasonable efforts” or “commercially reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person wishing to achieve a result would use in similar circumstances to perform that obligation as promptly as possible consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable immaterial expenditures or liabilities. If any date specified in this Agreement as the only day, or the last day, for taking action falls on a day that is not a business day, then that action may be taken on the next business day. Unless stated otherwise, all references to a date or time of day in this Agreement are references to that date or time of day of the location of the relevant JRNI entity set out in Clause 21. An obligation on a Party not to do something includes an obligation not to attempt to do that thing nor to allow that thing to be done.
20.2 Precedence. Subject always to paragraph 9 of the Data Processing Addendum, if there is any conflict or inconsistency between an Order Form, a Statement of Work, any Clause or paragraph of this Agreement, any schedule or appendix to this Agreement, and any Documentation, the Clause or paragraph of this Agreement will prevail, followed by a schedule to this Agreement, followed by an appendix to this Agreement, followed by an Order Form, followed by a Statement of Work, followed by the Documentation, except that the relevant Order Form or Statement of Work will prevail where: (i) a specific provision of this Agreement expressly states that different terms may be set out in the Order Form or Statement of Work; or (ii) an Order Form or Statement of Work expressly states that it is intended to vary a specific provision of this Agreement, in which case, the provision being varied must be identified in the Order Form or Statement of Work and the variation must be approved by JRNI’s CFO, which approval shall be evidenced by the CFO’s signature on the Order Form or Statement of Work.
20.3 Subcontracting. JRNI shall be entitled to subcontract any of its obligations under this Agreement to a third party, provided that JRNI shall remain primarily liable to you under this Agreement and shall have substantially equivalent terms in place with such subcontractors as are imposed on JRNI under this Agreement.
20.4 Severability. If a court or governmental authority of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, then such provision(s) will be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Clause 20.4, all other provisions of this Agreement are to remain in effect as written, except that this entire Agreement will be unenforceable if modifying or disregarding the unenforceable provision affects the economic and legal substance of the transactions contemplated by this Agreement in a manner materially adverse to either Party.
20.5 No Partnership. Both Parties are independent contractors under this Agreement. Nothing in this Agreement creates an employment, agency, joint venture, or partnership relationship between the Parties or any of their personnel, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
20.6 Identification. Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (not to be unreasonably withheld or delayed) or as is required by law. Subject to this, we may identify you as our customer and you may identify us as your supplier and the type of service we provide to you, provided that in doing so no Confidential Information of the other Party is disclosed.
20.7 No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
20.8 Waiver. The failure of a Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision by that Party unless acknowledged and agreed to by that Party in writing.
20.9 Entire Agreement. This Agreement (including all Order Forms, Statements of Work, schedules to this Agreement and the Documentation) constitutes the whole agreement between the Parties and supersedes all previous or contemporaneous discussions, correspondence, negotiations, arrangements, understandings and agreements between the Parties with respect to its subject matter.
20.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
20.11 Amendments. Except in relation to the SLA, the appendices and the Documentation, which JRNI may modify in its reasonable discretion from time to time, no purported variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each Party.
20.12 Government Rights. If the Booking Service is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that JRNI provides the Booking Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Booking Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with JRNI to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
20.13 Anti-Corruption. Each Party agrees to comply with all Applicable Laws relating to bribery, corruption and modern slavery. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
