This TERMS OF SERVICE (this "Agreement") is made between journy.io BV (“journy.io”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING ANY PORTION OF THE PLATFORM OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, journy.io IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES. IF YOU ACCESS OR USE ANY PORTION OF THE PLATFORM OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Request relating to the Services or first access or use the Services or Offerings (the “Effective Date”).
Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain international English meaning as commonly interpreted in the United Kingdom.
The Services, APIs and Software are not available to individuals under the age of 13 or who do not meet any of the other qualifications included in this Agreement. If You are under age 13, or do not meet the qualifications in this Agreement, please do not attempt to access or use the Services, APIs, or Software. If You are 13 or older but younger than 18, then You may establish Your own Account and access and use the Site and Offerings only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Site and Offerings.
The Site enables You to obtain access to the Offerings by requesting access through the Site (each, a “Request”). All Requests will be governed by the terms of this Agreement. journy.io will confirm Your Request either through the Site at the time you submit Your Request or by providing You with access to the Services, APIs, or Software included in Your Request. By accessing or using any portion of the Site or the Offerings, You agree to be bound by the terms of this Agreement with respect to Your use of and access to the Offerings. This Agreement will govern and control the terms of each Request.
This Agreement will be effective upon the Effective Date. If You have ordered a free, trial, beta, or evaluation subscription to any portion of the Offerings (collectively, a “Free Subscription”), then the term of this Agreement will continue for the applicable period of the Free Subscription and will thereafter expire unless You convert (as may be permitted by journy.io) to a non-trial subscription. If You have purchased a paid subscription to any portion of the Offerings (a “Paid Subscription”), then the term of this Agreement will continue for the initial period stated when you signed-up for the Paid Subscription and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated on the Site, then this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month renewal periods until terminated as set forth herein.
Subject to this Agreement, during the term of this Agreement journy.io will provide You with a limited subscription to access and use the Site and Services under this Agreement. All access to the Site and all portions of the Services will be solely by You for Your own use in connection with Your own business purposes or, if You are an entity or other organization, solely by Your employees and contractors for use on Your behalf in connection with Your business purposes. In all cases, Your rights to access and use the Site and Services are non-transferable and non-sublicensable. You understand that journy.io may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Site or Offerings (or any portion thereof) with or without notice.
Upon Confirmation of Your Request by journy.io, the rights granted to You under this Agreement entitle You to access and use the Site and Offerings through an account (Your “Account”). You will be permitted to establish a unique user identification and password combination applicable to Your Account (Your “Account ID”). Your Account ID is personal and may be used only by You or, if You are an organization, by an individual employee within Your organization. You are solely responsible for all use of and access to the Site and Offerings through Your Account and for compliance with the applicable terms of this Agreement when the Site or Offerings are used or accessed through Your Account. You will ensure the security and confidentiality of Your Account ID and will notify journy.io immediately if any Account ID is lost, stolen or otherwise compromised. You are responsible for all costs, fees, liabilities or damages incurred through any use of Your Account ID (whether lawful or unlawful). Any Offerings ordered or transactions completed through Your Account or under Your Account ID (including without limitation the configuration of the Services provided through Your Account) will be deemed to have been completed by You. journy.io will not be liable for the foregoing obligations or the failure by You to fulfill those obligations.
7. SOFTWARE AND APIS.
Any Software or APIs available on or accessible through or as part of the Site or Services are protected by journy.io’s IPR (as defined below). Unless otherwise expressly stated in an open source software license or other license agreement separate from this Agreement that You may have entered into (or may enter into) with journy.io relating to any Software or APIs (each such license or other agreement, a “Software License Agreement”), journy.io grants You a personal, limited, non-exclusive, non-transferable, non-sublicensable right and license to download, install, and execute the Software and APIs in accordance with the instructions provided on the Site or through the Services, solely for your own business purposes in connection with Your development of mobile or web applications that make use of the Offerings, in all cases as directed and permitted by journy.io (each an “Application”). Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any APIs or Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, superset, subset, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the APIs or Software without the prior written permission of journy.io. This Agreement is not intended to replace or supersede any applicable Software License Agreement and each applicable Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement as to the APIs or Software provided under that Software License Agreement.
8. THIRD-PARTY SERVICES.
The Services may include services (“Third Party Services”) developed, provided or maintained by third-party service providers (each a “Third Party Provider”). Unless otherwise stated in this Agreement or on the Site or through the Offerings, journy.io has no control over, is not responsible for, and does not provide support or maintenance for, any Third Party Services. In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Third Party Services may be subject to additional Fees (as defined below) as set forth on the Offerings. Notwithstanding the terms of any Third Party Services Agreement, journy.io or the Third Party Provider may change, modify or discontinue any Third Party Service at any time and without notice to You.
The Site may permit You to establish workspaces through Your Account on the Site for use in accessing the Offerings and developing Applications for use in connection with the Offerings (each, Your “Organization”). If You establish an Organization through the Site, You may invite other journy.io users to access Your Organization (each journy.io user accessing Your Organization, a “Collaborator”). You are responsible for all use of and access to the Site and Offerings by each Collaborator through any Organization You establish and for compliance with the terms of this Agreement by each Collaborator when the Collaborator is using or accessing the Site or Offerings through Your Organization. You are responsible for all costs, fees, liabilities or damages incurred through any use of the Site or Offerings through Your Organization. Any Offerings ordered or transactions completed through Your Organization (including without limitation the configuration of the Services provided through Your Organization) will be deemed to have been completed by You. Notwithstanding the foregoing, if You are permitted to access an Organization established by any other journy.io user, You will remain responsible for Your access to and use of that Organization, including the Site and all Offerings You access or use through the Organization, and for Your compliance with this Agreement. You acknowledge that Your access to any Organization no created by You is solely at the discretion of the journy.io user establishing that Organization and journy.io. All references to the Site in this Agreement will include any Organization established through the Site.
The Site and Offerings and the databases, software, hardware, and other technology used by or on behalf of journy.io to provide the Site and Offerings and their structure, organization, coordination, and underlying data, information, and source code (collectively, the “Technology”) constitute valuable IPR of journy.io. Subject to any Software License Agreement or Third Party Service Agreement, You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts or other automated means to collect information from or otherwise access or interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology; (6) provide the Services, or use the Offerings to provide services, to third parties or otherwise make the Technology or access thereto available to any third party, except as expressly permitted under this Agreement; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (7) access or attempt to access the Offerings other than through the APIs; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (9) obscure or alter the identification of the origin of any data transmitted through the Services; or (10) interfere in any manner with the operation or hosting of the Offerings or Technology, or attempt to gain unauthorized access to the Technology. You will not allow any access to or use of the Technology, whether through Your Account or any Organization You establish through the Site, except consistent with the terms, conditions and restrictions set forth in this Agreement.
11. FEES AND PAYMENT.
You agree to pay journy.io all fees set forth on the Site when You purchase a Paid Subscription, listed in connection with each Request, or incurred through the use of any Offerings by You, through Your Account, or through any of Your Organizations (“Fees”). All Fees will be billed as indicated on the Site or in connection with each Request. If applicable billing and payment terms are not specified for any applicable Fee, then the initial payment of the Fee will be due and payable in advance prior to the establishment of Your Account or your access to any Offerings. All other subsequent Fees will be due and payable in advance on a monthly basis during the term of this Agreement (unless or until this Agreement terminated as set forth herein). If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant journy.io the right to charge the credit card or debit the bank account provided to journy.io for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to journy.io, including, without limitation, in the case of any termination or suspension of this Agreement. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. journy.io may change any portion of the Fees by posting the changes to the Site or otherwise notifying You through the Site or Offerings of the change, such changes to take effect at the beginning of the next period of this Agreement. If journy.io requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
You may terminate this Agreement at any time upon notice to journy.io. You may provide any such notice of termination as specified in this Agreement or as journy.io may indicate on the Site. Any such notice will be effective upon actual receipt by journy.io. Notwithstanding the foregoing, if You have entered into a written agreement for a Paid Subscription (such agreement, an “Order Form”), You may not terminate this Agreement while the Order Form is in place (including any renewals thereof). This Agreement (and any related Order Forms) may be terminated by journy.io, at any time, in journy.io’s sole discretion: (1) upon any breach by You of this Agreement that remains uncured 15 days after journy.io delivers written notice to You of such breach; or (2) at any time during any Free Subscription, for any reason or no reason, upon notice to You. journy.io may also terminate this Agreement (and any related Order Forms) upon notice to You if journy.io, in its sole discretion, ceases to make any portion of the Services generally commercially available. Upon termination or expiration of this Agreement for any reason, subject to any Software License Agreement or Third Party Service Agreement: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Site and any Offerings; (c) all Fees then owed by You (if any) will become immediately due and payable; and (d) You will immediately either return to journy.io or, at journy.io's discretion, destroy the journy.io Content (as defined below), Account IDs, journy.io Confidential Information (as defined below), and other information related to this Agreement in Your possession or control. The following Sections will survive any expiration or termination of this Agreement for any reason: 10 (Restrictions), 11 (Fees and Payment), 12 (Termination), 14 (Ownership), 16.3 (Warranties and Disclaimer: Disclaimer), 17 (Indemnity), 18 (Limitation on Liability), 19 (Data Privacy), 20 (Confidentiality), 23 (Notices), 24 (Governing Law) and 25 (General).
Without limiting journy.io’s right to terminate this Agreement, journy.io may also immediately and indefinitely suspend Your access to the Site or Offerings, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by journy.io to be inappropriate or detrimental or harmful to the Site or Offerings, any other journy.io customer or user, or any other third party.
journy.io retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Site, Offerings, Technology, journy.io Content, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Site and Offerings under this Agreement. The journy.io name, logo and the product and service names associated with the Services are trademarks of journy.io (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data and databases, and contract rights. You hereby grant journy.io a nonexclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all patent rights with respect to improvements or extensions created by or for you that are relevant to the APIs or Software or that otherwise result from or are enabled by access to the APIs or software. For clarity, you are not required to disclose any such patent or patent rights to journy.io.
15.1 Your Content.
15.2 journy.io Content.
In addition to any of Your Content, journy.io may provide You with access to certain data, information, and other content through the Site and Offerings (“journy.io Content”). As between You and journy.io, all journy.io Content is owned by journy.io or its Third Party Providers and licensors. Subject to this Agreement, You may access the journy.io Content solely for Your own business purposes in connection with Your use of the Site and Offerings. Except as expressly provided in this Agreement, You will not, and will not permit any other journy.io user or other third party to: (a) alter, modify, reproduce, or create derivative works of the journy.io Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the journy.io Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the journy.io Content. Certain of the journy.io Content may include or be based on data, information and content from third party providers (“Third Party Content”). journy.io uses commercially reasonable measures to ensure that the Third Party Content is reliable, but journy.io has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
16. WARRANTIES AND DISCLAIMER.
16.1 By journy.io.
Except in the case of any Offerings provided during a Trial/Free Subscription, journy.io represents and warrants to You that journy.io will use commercially reasonable efforts to maintain and verify that the Offerings operate in accordance with this Agreement. journy.io’s sole obligation and Your sole and exclusive remedy in the event of any failure by journy.io to comply with the foregoing sentence will be for journy.io to, at journy.io’s option, re-perform the affected Offerings or refund to You the Fees, if any, You have actually paid for the affected Offerings during the month in which the failure occurred.
16.2 By You.
You hereby represent, warrant, and covenant for the benefit of journy.io that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (c) Your Content, and any other data, information or content You provide to journy.io in connection with this Agreement and Your access to the Offerings and use of the Offerings, is correct and current; and (d) You will comply with all laws, rules, and regulations applicable to Your use of and access to the Offerings or regarding your business, products or services.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SITE, PLATFORM, AND TECHNOLOGY (AND ALL journy.io CONTENT PROVIDED THROUGH THE SITE OR PLATFORM) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND journy.io AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM, AND YOU DISCLAIM ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY journy.io, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
You hereby indemnify, defend, and hold harmless journy.io and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from (a) any breach of this Agreement by You or anyone accessing the Site or Offerings through any Account or (b) Your access to or use of the Offerings or any of Your Content or any journy.io Content. journy.io will provide You with notice of any such claim or allegation, and journy.io will have the right to participate in the defense of any such claim at its expense.
18. LIMITATION ON LIABILITY.
IN NO EVENT WILL journy.io BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITE, OFFERINGS OR TECHNOLOGY (OR ANY journy.io CONTENT PROVIDED THROUGH THE OFFERINGS OR SERVICES), EVEN IF journy.io HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. journy.io’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL OFFERINGS PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO journy.io HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT journy.io WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, journy.io’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
19. DATA PRIVACY.
21. LINKED SITES.
The Offerings and Services may contain links to third-party sites or content that are not under the control of journy.io. If you access a third-party site or content from the Offerings or Services, then you do so at your own risk and journy.io is not responsible for any content on any linked site or content. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by journy.io or any group or individual affiliated with journy.io. You may not use on your site any journy.io Content or marks appearing on the Site or Offerings in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Offerings without prior written consent.
22. MODIFICATIONS TO THE SITE OR OFFERINGS.
journy.io reserves the right, at any time, to modify the Site or Offerings by making such modification available through the Site or Offerings or by providing other notice to You. Any modification will be effective immediately upon posting on Site or the Offerings or such other notice. journy.io reserves the right, at any time, to modify the terms of this Agreement by making such modification available through the Site or Offerings or by providing other notice to You. Any modification will be effective 14 days following posting on Site or Offerings or such other notice, unless the modification is for legal purposes, in which case the modification will be effective upon posting on the Site or Offerings or upon such other notice. As applicable, You will be deemed to have agreed to such modification through Your continued use of the Site or Offerings.
All notices required to be provided to journy.io under this Agreement will be provided by You in writing and shall be delivered by hand, registered mail (return receipt requested), or overnight delivery service (with confirmation of receipt) to journy.io BV, Folke Bernadottestraat 16, B9000 Ghent, Belgium or the address for journy.io set forth on the Site. All notices and other communications provided to You may be provided by journy.io by email to the email address journy.io maintains on file for You or to any other mailing address You have provided to journy.io. All notices will be deemed to have been received by the addressee upon confirmed receipt or, as applicable, within 24 hours after journy.io sends notice by email to You.
24. GOVERNING LAW.
25. ADDITIONAL TERMS.
Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Site and Offerings and is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned or transferred by You (in whole or in part, whether by sale, merger, consolidation, operation of law, or otherwise) without the prior written approval of journy.io. Any assignment in violation of the foregoing will be null and void. journy.io may assign this Agreement to any party that assumes in writing journy.io’s obligations hereunder. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You to connect to, access, and use the Services and the Offerings. journy.io may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Offerings appearing on the journy.io web site and for other marketing and promotional purposes relating to the Offerings.