THIS MASTER SUBSCRIPTION AGREEMENT, TOGETHER WITH THE POLICY DOCUMENTS, GOVERNS YOUR USE OF JRNI’S SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE; OR (2) EXECUTING AN ORDER FORM OR STATEMENT OF WORK ELECTRONICALLY OR MANUALLY THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF THE PERSON ACCEPTING THIS AGREEMENT ACCEPTS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT PERSON REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE PERSON ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THE PERSON MUST NOT ACCEPT THIS AGREEMENT AND NEITHER THE PERSON 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 1 JANUARY 2023. IT IS EFFECTIVE BETWEEN JRNI AND CUSTOMER AS OF THE DATE OF CUSTOMER ACCEPTING THIS AGREEMENT AS SET OUT ABOVE (THE “EFFECTIVE DATE”).
Definitions.
In this Agreement, unless the context otherwise requires, the following words have the following meanings:
“Affiliate” of a Party means, a company 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 Statement of Work and/or Order Form together with the terms and conditions of this Master Subscription Agreement and any schedules, appendices or annex hereto.
“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 and Privacy 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.
“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 an Order Form.
“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, if designated as confidential, 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 Data” means any data submitted or uploaded by Users or End Users to the Booking Service under the Customer's accounts including Customer Personal Data and any other data provided or made available to JRNI, its Affiliates or subcontractors by Customer or its Affiliates in connection with this Agreement.
“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 Processing Agreement” or “DPA” means JRNI’s data processing agreement.
“Data Protection and Privacy Laws” means Applicable Law relating to privacy or the use or processing of data relating to natural persons, to the extent in force, and as such are updated, amended or replaced from time to time.
“Documentation” means any operating manuals, user instruction manuals and technical literature describing the operation and functionality of the Services made available by JRNI to Customer as may be modified by JRNI from time to time.
“Effective Date” shall, in respect of this Agreement be the date this Agreement is accepted by you as stated above and, in respect of an Order Form or Statement of Work, shall be the date of execution of the Order Form or Statement of Work, except as stated otherwise therein.
“End User” means any end-users that make a booking using your or your Affiliate’s implementation of the Booking Service.
“Fees” means the fees for the Services set out in an Order Form.
“Force Majeure” means any cause, preventing either Party (or such Party’s suppliers or contractors) from performing any or all of its obligations, which is beyond the reasonable control of the Party so prevented and which may include nationwide strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage, compliance with any new Applicable Law or change in Applicable Law, breakdown of plant or machinery, internet delays or failures or connectivity issues, fire, flood, storm, epidemics, pandemics and any other acts, events, omissions or accidents.
“Implementation Services” means any implementation of the Booking Service for the Customer, as detailed and agreed in an Order Form and/or Statement of Work.
“Insurance Statement” means JRNI’s statement of insurance cover for the provision of the Services.
“Integrations” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which link to, or which you may connect to or enable in conjunction with the Services, including, Integrations which may be integrated directly by you or your Affiliate or at your or their direction.”
“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 20 unless a different entity is named in the Order Form.
“JRNI Materials” means the Services, JRNI Technology, and any information, Documentation, software, products and services contained in or made available to you by or on behalf of JRNI in respect of the provision of the Services.
“JRNI Technology” means any software development kits, application programming interfaces, and underlying proprietary technology, including software, hardware, user interfaces, algorithms and processes and any updates or modifications thereto made available to you by JRNI in respect of the provision of the Services.
“License Administrators” means those Users you designate who are authorized 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 form(s) setting out details of the Services including, the Subscriptions and any Usage Limits, Implementation Services and Professional Services as applicable together with the associated fees, billing periods and payment terms. .
“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” shall have the same meaning as the term “personal data”, “personally identifiable information (PII)” or the equivalent term under Data Protection and Privacy Laws.
“Policy Documents” means 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.
“Professional Services” means any integration, consulting, language translation or other professional services other than the Booking Service or Implementation Services identified in an Order Form as may be more particularly set out in a Statement of Work.
“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 Level Agreement” or “SLA” means JRNI’s standard service level agreement, as amended by JRNI from time to time.
“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 as may be described in the Documentation from time to time.
“Statement of Work” means a document describing in detail the Services identified in the relevant Order Form including their schedule for performance and related matters.
“Sub-Processor” means a third party subcontractor which may include JRNI Affiliates appointed by JRNI to process Customer Personal Data.
“Subscription” means each subscription for the Booking Service as set out in the Order Form.
“Subscription Start Date” shall be the date indicated as such 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 as such period may be renewed in accordance with Clause 1.3, each renewal being a separate Subscription Term.
“Term” shall be determined in accordance with Clause 1.1.
“Usage Limit” means a limit or restriction regarding your use of the Services as set out in a relevant Order Form or as notified to you in writing by JRNI from time to time, which may include, limits on number of Users, locations, sms, email notifications, API calls, consumption limits for single tenant or multi-tenant environments.
“Users” means your employees, representatives, consultants, contractors and agents authorized to access and/or use the Booking Service and who have been supplied user identifications and passwords by you (or by JRNI at your or your Affiliate’s request).
1. Term.
1.1 Duration of Agreement. This Agreement shall govern all Order Forms. This Agreement shall commence on the Effective Date and shall, unless terminated in accordance with its express terms, continue until the expiration or termination of all Subscriptions and Order Forms under this Agreement(“Term”).
1.2 Duration of Subscriptions/Order Form. Each Subscription shall commence on the Subscription Start Date and shall, unless terminated in accordance with this Agreement, continue for the Subscription Term as may be renewed in accordance with Clause 1.3.
1.3 Renewal. Except as otherwise expressly stated in the Order Form, the Order Form and each Subscription therein shall automatically renew at the end of the then-current Subscription Term for subsequent, consecutive, additional periods equal to the expiring Subscription Term, unless either Party notifies the other Party in writing of its election not to renew the Order Form no less than 30 days prior to the end of the then-current
Subscription Term. For the avoidance of doubt, a Party’s right not to renew under this Clause 1.3 is the right not to renew the entire Order Form and does not permit part renewals in relation to specific Subscriptions. Upon renewal, the Order Form and each Subscription therein shall renew on the same terms, including as to fees, invoicing and duration, unless JRNI provides written notice (which may be given by email) of a fee increase or other changes no later than 60 days prior to the end of the then-current Subscription Term, in which case the fees or other changes so notified shall apply from the start of the new Subscription Term and JRNI may issue an Order Form to reflect such changes.
2. JRNI Responsibilities.
2.1 JRNI, during the relevant Term, shall make the Services available to you:
(a) in accordance with the applicable Order Form;
(b) in accordance with the SLA.
2.2 You acknowledge and agree that the Service Credits (as defined in the SLA) are your sole and exclusive remedy and our sole and exclusive liability for any Service Level Failure (as defined in the SLA).
3. License.
3.1 Subject to the terms of this Agreement, JRNI hereby grants you a non-exclusive, non-transferable, revocable (in accordance with Clause 11), worldwide right for you and your Users to:
(a) access and use the Booking Service (including to enable use of the Booking Service by End-Users) solely for your own internal business purposes during the Term under the Subscriptions set out in an Order Form; and
(b)use any JRNI Technology and Documentation that JRNI provides to you from time to time in each case solely in connection with your access and use of the Booking Service.
3.2 You may extend your rights and benefits provided in this Agreement to any Affiliates authorized to use the Services under a relevant Subscription as well as to any contractors or service providers acting on your or your Affiliate’s behalf, provided that you shall remain responsible and liable for your and their compliance with this Agreement.
3.3 As between you and JRNI, you are responsible for compliance with the provisions of this Agreement by Users and End-Users and for any activities that occur under your or your Affiliate’s account with JRNI. You are responsible for the use and misuse of the Booking Service and JRNI Materials by Users and End Users and a breach by Users or End Users of this Agreement will be deemed a breach by you of this Agreement. JRNI reserves all rights in and to the JRNI Materials not expressly granted to you in this Clause 3. 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 therein
3.4 If you decide to enable, access or use Integrations, your access and use of such Integrations shall be governed solely by the terms and conditions of such Integrations. By enabling, accessing or using any Integrations, you are expressly permitting JRNI to share your login and/or Customer Data to the provider of the Integrations as necessary to facilitate the use of the Integrations. JRNI does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Integrations, including, without limitation, their content, their processing of data (including Customer Data), or any interaction between you and the provider of such Integrations. Further, JRNI does not guarantee the continuing availability or interoperability of any Integrations with the Services and JRNI may at its entire discretion cease enabling access or integration to or with any Integrations without penalty. You irrevocably waive any claim against JRNI with respect to Integrations including in respect of any damages or loss caused or alleged to be caused by or in connection with your enabling, access or using the Integrations. This Clause 3.4 applies equally in respect of your Affiliates’ enablement, access or use of Integrations.
3.5 From time to time, you may provide to us (either on your own accord or at our request) feedback, analysis, suggestions, and comments (including bug reports, test results, and design suggestions or ideas) related to the Services (collectively, “Feedback”). You agree that JRNI will have the perpetual, irrevocable, and worldwide right to use, modify, license, sublicense, and otherwise exploit all or part of the Feedback or any derivative of it in any manner or media now known or later devised without any remuneration, compensation, or credit to you.
3.6 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.
4. Restrictions.
4.1 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 8 (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.
5. Your Responsibilities.
5.1 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 necessary licenses, consents, and permissions necessary for JRNI, its contractors, and agents to perform their obligations under this Agreement; and
(d) ensure that your network and systems comply with the relevant specifications provided by JRNI from time to time.
5.2 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.
5.3 You shall ensure compliance with any Usage Limits and without limiting the foregoing:
(a) you shall 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; and
(b) you shall not allow access to the Booking Service to any individual who is not a User.
5.4 Without prejudice to JRNI’s other rights or remedies, in the event of a breach of Clause 5.3, JRNI shall have the right to invoice you for an amount equivalent to the fees that would have applied had such use been authorized as calculated in accordance with the fees set out in the relevant Order Form (or, as applicable, JRNI’s then-current list price). You shall pay such invoice upon 10 days from receipt of invoice and JRNI may, in its discretion, issue a revised Order Form to reflect the additional usage and fees.
5.5 If you fail to pay an invoice when due in accordance with Clause 5.4, then without prejudice to JRNI’s other rights and remedies, JRNI shall be entitled, upon written notice to you, to suspend your or your Affiliates’ access to the Services with immediate effect until such time as payment is made in full.
5.6 The Booking Service may offer you the ability to communicate with others by sending messages, including e-mail 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.
6. Insurance
6.1 During the Term, JRNI shall maintain in force insurance cover as specified in the Insurance Statement.
7. Customer Data.
7.1 You, not JRNI, have sole responsibility for the entry, deletion, correction, accuracy, quality, integrity, legality, reliability, appropriateness, and right to transfer and use 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 JRNI’s compliance with any express written instruction from you or your Affiliates or any failure in data transmission or operation of the Booking Service by you.
7.2 As of the Effective Date, JRNI is certified under ISO 27001 and SOC 2 and shall maintain an information security program for the Services that complies with the ISO 27001 standards, SOC 2 standards, or such other standards as are substantially equivalent to ISO 27001 and/or SOC 2.
7.3 To the extent that JRNI processes Customer Personal Data on your behalf when performing its obligations under this Agreement, the Parties shall comply with their obligations under the DPA 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 use, 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 use, processing, and transfer as required by all applicable Data Protection and Privacy Laws; and
(c) each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the Customer Personal Data or its accidental loss, destruction or damage.
7.4 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 Data Protection and Privacy Laws.
8. Intellectual Property Rights.
8.1 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;
(b) you own all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
8.2 You grant to JRNI a worldwide, royalty free license to access, use, transmit and disclose the Customer Data for the limited purpose of JRNI providing, and supporting your use of, the Services.
8.3 Without prejudice to JRNI’s other rights or remedies under this Agreement, to the extent that any JRNI Material (or any part thereof) 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 of 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).
9. Fees and Payment
9.1 You shall pay all Fees for the Services in accordance with the terms in the applicable Order Form and in this Clause 9.
9.2 Fees for Subscriptions. Fees for Subscriptions shall be as set out in the Order Form and:
(a) except as expressly stated otherwise in this Agreement and to the extent permitted by Applicable Law: (i) all payment obligations are non-cancellable and Fees paid are non-refundable irrespective of whether Subscriptions are used; and (ii) Subscriptions in the quantities set out in the relevant Order Form are fixed for the corresponding Subscription Term and may not be decreased; and
(b) Your designated License Administrators may add Subscriptions at any time by executing an additional Order Form. Added Subscriptions will be subject to the following: (a) except as otherwise agreed in writing, added Subscriptions for a particular Service will be subject to the same terms as the then-existing Subscriptions and will continue for the duration of the then-current Subscription Term for that Service; (b) the Fees for the added Subscriptions will be the same as the Fees applicable to your then-existing Subscription under the applicable Order Form, prorated for the remainder of the Subscription Term; and (c) Subscriptions added in the middle of a billing month will be charged in full for that billing month.
9.3 Fees for Implementation Services and/or Professional Services. Fees for Implementation Services and/or Professional Services shall be as set out in the Order Form and may be charged on a fixed price or time and materials (“T&M”) basis as follows:
(a) Fixed Price. Fees stated as being on a fixed-price basis shall be non-refundable unless otherwise expressly stated in the Order Form; and
(b) Time and Materials. For Fees stated as being on a T&M basis, the T&M rates and terms specified in the Order Form shall apply. Any total amounts stated for Services provided on a T&M basis are provided as good faith estimates only and are not a guarantee that the Services will be completed for that amount. The actual T&M Fees may be higher or lower than such estimated total according to the T&M rates specified.
9.4 All Fees shall be quoted and payable in the currency set out in the Order Form and are not subject to any deductions, credits, or other set offs. As soon as administratively practical, but in no event later than 3 days following the Effective Date of an Order Form, and to the extent relevant to your invoice processing, you shall provide JRNI with any relevant purchase order documentation. Unless otherwise expressly stated in the Order Form, JRNI shall invoice you for Fees as follows:
(a) For Subscriptions. Annually in advance on the Effective Date of the relevant Order Form, except for Subscriptions renewed in accordance with Clause 1.3, which shall be invoiced annually in advance thirty (30) days prior to the commencement date of the new Subscription Term (“Renewal Date”) and payable on the Renewal Date. For Subscriptions added in accordance with Clause 9.2(b), these shall be invoiced on the Effective Date of the Order Form adding the Subscriptions.
(b) For Implementation Services and Professional Services. In advance on the Effective Date of the relevant Order Form.
9.5 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. Any disputes raised must be reasonable and raised in good faith. Where you dispute any invoice, you shall pay any undisputed amounts in accordance with the terms of this Agreement. For the avoidance of doubt, any failure by you to provide purchase order documentation or any absence of a Customer purchase order reference on an invoice, shall not constitute valid grounds to dispute an invoice or otherwise to delay payment.
9.6 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.
9.7 You shall pay each invoice submitted to you by JRNI within 30 days from the date of the invoice, unless otherwise stated in the applicable Order Form, to a bank account nominated in writing by JRNI from time to time. For the avoidance of doubt, invoiced fees shall be due whether or not JRNI has received any applicable purchase order documentation from you. You are responsible for providing complete and accurate billing and contact information to JRNI and notifying JRNI of any changes to such information.
9.8 The Parties acknowledge and agree that failure to pay any fees when due shall constitute a material breach of this Agreement. If any invoiced fees are not received by JRNI by the due date (except with respect to fees then under reasonable and good faith dispute), then without limiting JRNI’s rights or remedies, those fees shall accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If your account is 30 days or more overdue (except with respect to fees then under reasonable and good faith dispute), JRNI may, without limiting its other rights and remedies, suspend your access to the Services until such fees are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice JRNI may terminate this Agreement including all Order Forms.
10. Suspension.
10.1 JRNI may suspend your or a User’s use of the Booking Service:
(a) immediately, if we determine in our discretion that you or any User is in breach of Clauses 3, 4, 5.2, 5.6, 7.3 and 16 of this Agreement or if your use of the Services is otherwise causing material harm to JRNI or its customers ;
(b) in accordance with Clause 5.5;
(c) in accordance with Clause 9.8; or
(d) immediately, if you have failed to pay fees when due and JRNI reasonably believes that such failure is due to actual or anticipated financial difficulties.
10.2 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 Services where applicable. You shall assist JRNI in denying access to any User that JRNI has identified as being unauthorized.
10.3 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. If JRNI exercises its right to suspend under this Clause 10, JRNI shall have the right to charge a fee to cover its costs which must be paid by you prior to reinstatement of the Services.
11. Termination.
11.1 A Party may terminate this Agreement in its entirety or in relation to a specific Order Form (or part thereof) with immediate effect by providing written notice to the other Party, if the other Party:
(a) commits a material breach of this Agreement or Order Form (or part thereof), 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 of the 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 (or relevant part thereof); or
(b) commits a material breach of this Agreement or Order Form which is incapable of remedy. 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 (or relevant part thereof).
11.2 A Party may terminate this Agreement in its entirety or in relation to a specific Order Form (or part thereof) with immediate effect by providing written notice to the other Party, if the other Party (a) fails to or threatens to suspend making payments on any of its debts by reason of actual or anticipated financial difficulties or commences negotiations with its creditors; or (b) if such Party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, being struck of the register of companies, having a receiver appointed to any of its assets or entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause 11.2.
11.3 Upon termination by:
(a) you in accordance with Clauses 11.1, JRNI shall issue to you a pro-rata refund for any Fees paid in advance in respect of the affected Subscriptions and Services corresponding to the unexpired portion of the Subscription Term(s) under the relevant Order Form(s) as at the effective date of termination.
(b) JRNI in accordance with Clauses 11.1, you shall pay any unpaid Fees in respect of the terminated Subscriptions and Services corresponding to the unexpired portion of the Subscription Term(s) under the relevant Order Form(s) as at the effective date of termination.
11.4 Upon any termination of this Agreement in its entirety or in relation to a specific Order Form: (i) all rights and licenses granted to you under this Agreement or the terminated Order Form (as applicable) shall terminate, and you shall promptly cease exercising those rights and licenses, (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 (as applicable); and (iii) you shall promptly pay to JRNI any amounts due under this Agreement or Order Form (as applicable).
11.5 Upon your written 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, make available to you a file of the Customer Data in JRNI’s possession at such time relating to the Agreement or Order Form (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 or Order Form.
11.6 Termination of this Agreement shall terminate all Subscriptions and Order Forms in effect under this Agreement, but termination of any Subscriptions or Order Forms shall not affect any other Subscriptions or Order Forms as applicable.
11.7 Provisions that survive termination or expiry are those relating to limitation of liability, infringement of indemnity, payment and others which by their nature are intended to survive. Any expiration or termination of this Agreement or Order Form shall not modify or alter any right of a Party hereto, which arose prior to such expiration or termination.
12. Representations & Warranties.
12.1 Each Party represents and warrants that (a) it has the legal power and authority to enter into this Agreement; (b) it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement and (c) it is compliant with Applicable Law.
12.2 You represent and warrant that the performance of your obligations under this Agreement and JRNI’s access and use of the Customer Data in accordance with this Agreement and any Intellectual Property Rights provided or made available to JRNI by Customer and the exercise of any rights under licenses granted by Customer to JRNI will not infringe any Intellectual Property Rights (or moral rights) or any other rights of any third party.
12.3 JRNI represents and warrants that the performance of its obligations under this Agreement and the Customer’s access to and use of the Services in accordance with this Agreement, any Intellectual Property Rights provided or made available by JRNI and the exercise of any rights under licenses granted by JRNI to the Customer will not infringe any Intellectual Property Rights (or moral rights) or any other rights of any third party.
12.4 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; and (c) 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 except where the non-compliance or existence of the virus or malicious code is attributable to an act or omission of the Customer, its Affiliate, Users or your or your Affiliate’s contractors, you may terminate this Agreement or, as applicable, Order Form (or affected part thereof) and JRNI will issue a pro-rata refund of any Fees paid in advance in respect of the affected Subscription(s) and/or Services corresponding to the unexpired portion of the Subscription Term(s) as at the effective date of termination.
12.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN CLAUSES 12.1, 12.3 and 12.4, 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 OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, 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 OR THE BOOKING SERVICE (FOR EXAMPLE, DATA SUBMITTED TO THE BOOKING SERVICE BY AN END USER AT THEIR DISCRETION).
13. Indemnification.
13.1 Subject to Clause 13.3, 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 (excluding any U.S. “restricted countries”) 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”).
13.2 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 not in accordance with this Agreement; (ii) JRNI’s use of any Customer Data in accordance with this Agreement; or (iii) any Customer IP Claim (as defined below).
13.3 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 specifications or requirements mandated by you, your Affiliates and your or their contractors; or (v) your failure to implement a work-around directed by JRNI to fix an Error (as defined in the SLA), 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”).
13.4 In the defense, settlement or avoidance of any IP Claim, and in addition to but not in lieu of any other obligation set out in this Clause 13, JRNI may, at its option and (subject to your obligations under Clause 13.2) 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 license for you to continue using and receiving any of the allegedly infringing JRNI Materials.
13.5 If JRNI determines in its good faith business judgment that the remedies set out in Clauses 13.4 (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 on a pro rata basis any prepaid monies paid by you for the infringing components of the JRNI Materials as of the effective date of termination.
13.6 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 13, except to the extent the failure or delay materially prejudices the Indemnitor. The Indemnitor has the exclusive right to conduct the defense 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 defense of any Claim, at the Indemnitor’s request and expense; (iii) the Indemnified Party may participate at its expense in Indemnitor’s defense 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 defense 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 13. 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 defense of any Claim for which the Indemnified Party conducts the defense under this Clause 13.6.
13.7 You acknowledge that this Clause 13 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.
14. Force Majeure and Internet Delays.
14.1 If either Party is prevented from performance of any of its obligations under this Agreement by Force Majeure, that 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 Party so prevented 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.
14.2 If either Party is prevented 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 Party so prevented, 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.
14.3 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.
14.4 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.
15. Limitation of Liability.
15.1 NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR (A) DEATH OR PERSONAL INJURY RESULTING FROM GROSS NEGLIGENCE OR FOR FRAUD, FRAUDULENT MISSTATEMENT, OR FRAUDULENT MISREPRESENTATION; OR (B) ANY CLAIMS ARISING UNDER A PARTY'S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO CLAUSE 13. NOTHING IN THIS AGREEMENT WILL LIMIT YOUR LIABILITY FOR YOUR BREACH OF CLAUSE 4 OR YOUR OBLIGATION TO PAY ANY UNDISPUTED FEES.
15.2 SUBJECT TO CLAUSE 15.1, NEITHER PARTY SHALL BE LIABLE (IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE): (A) FOR ANY LOSS ARISING FROM OR IN CONNECTION WITH LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF CONTRACTS OR BUSINESS, OR FAILURE TO REALIZE ANTICIPATED SAVINGS, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE ARISING FROM YOUR USE OF THE SERVICES, INCLUDING THE INABILITY TO USE THE BOOKING SERVICE; LOSS OR CORRUPTION OF DATA OR UNAUTHORIZED ACCESS TO DATA; OR (B) FOR 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.
15.3 SUBJECT TO CLAUSE 15.1 AND CLAUSE 15.2 AND EXCEPT AS SET FORTH IN CLAUSE 15.4, NEITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH ANY ORDER FORM WILL EXCEED 100% OF THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU UNDER THAT ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, REGARDLESS OF WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.
15.4 SUBJECT TO CLAUSE 15.1, CLAUSE 15.2 AND CLAUSE 15.3, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO A PARTY’S BREACH OF ITS OBLIGATIONS SET OUT IN CLAUSE 16 (CONFIDENTIALITY) OR BREACH OF A PARTY’S OBLIGATIONS RELATING TO CUSTOMER DATA INCLUDING AT CLAUSE 7 AND UNDER THE DPA, WILL EXCEED THE LESSER OF $1,000,000 (ONE MILLION US DOLLARS) AND FIVE TIMES THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU UNDER THE APPLICABLE ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
16. Confidentiality.
16.1 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.
16.2 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.
16.3 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) utilize any Customer Data on an anonymous and aggregated basis in connection with our development of any products, strategies, or services; (iii) anonymize 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.
17. Notice.
17.1 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 e-mail address on record with JRNI, or both.
17.2 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 recognized overnight delivery service.
17.3 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).
17.4 Notice to JRNI must be addressed to the relevant contact as set out in Clause 20. Notice to you will be addressed to your address set out in an Order Form.
18. Assignment; Change in Control.
18.1 Subject to Clause 19.3, 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 18.1 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.
18.2 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 immediately upon written notice to you.
19. General.
19. 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 JRNI. 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. Notwithstanding any other provision of this Agreement, time is not of the essence in this Agreement.
19.2 Precedence. If there is any conflict or inconsistency between the terms of the following documents, the order of precedence shall be: (1) the DPA, (2) the body of this Agreement, (3) the relevant Order Form, (4) the SLA, (5) a Statement of Work and (6) the Documentation.
19.3 Subcontracting. Subject to the terms relating to the appointment of Sub-Processors set out in the DPA, 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 imposed on JRNI under this Agreement.
19.4 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 19.4, 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.
19.5 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.
19.6 Publicity. During the Term of this Agreement, Customer agrees to JRNI’s use of your name and logo on JRNI’s website and in marketing materials, case studies and white papers in accordance with the Customer’s standard trademark usage guidelines. Except as otherwise stated in this Agreement, neither Party may use the trademarks, logos or trade names of the other Party without the prior written consent of that Party.
19.7 No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, 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.
19.8 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.
19.9 Entire Agreement. This Agreement (including all Order Forms to this Agreement, the Policy Documents and 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.