TERMS AND CONDITIONS
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, June20 will provide Customer with access to the Services solely for Customer’s internal use (and the use of Customer’s End-Users while on Customer premises). Except for the Mobile App, the software underlying the Services will be hosted on a server under control or direction of June20. The Services are subject to modification from time to time at June20’s sole discretion, for any purpose deemed appropriate by June20; provided that June20 will not materially reduce the aggregate features and functionalities of the Services.
1.2 Except as otherwise agreed between June20 and Customer in writing, June20 will undertake commercially reasonable efforts to make the Services available 99.9% of the time, excluding any time referred to in the next sentence. Notwithstanding the foregoing, June20 reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) while Customer is in breach of this Agreement, including without limitation, failure to pay any amounts due to June20. June20 will use reasonable efforts to give Customer prior written notice of suspension.
1.3 Subject to the terms and conditions hereof, June20 will provide reasonable support to Customer for the Services as described in the Order Form. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to June20.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to all the features and/or functionalities of the Services may require the Customer to download and/or install certain June20 mobile application software on a device that uses June20's mobile device management system (such device, an "MDM Device" and the mobile application software, the “Mobile App”) . Subject to Customer’s compliance with all of the terms and conditions of this Agreement, June20 hereby grants Customer a limited, personal, non-sublicensable, non-transferable, nonexclusive license to internally use the Mobile App, only in accordance with any accompanying documentation, and only as required to access and use the Services in accordance with this Agreement.
2.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software (including without limitation, the Mobile App), documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or software; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; use the Services or software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of June20, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, malware, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
2.3 Customer will reasonably cooperate with June20 in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as June20 may reasonably request to assist in its provision of the Services. Customer will also cooperate with June20 in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer hereby agrees to defend, indemnify and hold June20 harmless from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties in connection with any un-Affiliated third party claim or action (i) that alleges any infringement, violation or misappropriation of any intellectual property and/or proprietary right(s) by any Content (as defined below), including, without limitation, in connection with distribution and/or analysis thereof through the Services, (ii) that alleges any violation of applicable law(s) and/or regulations) by Customer in performance of its obligations and/or exercise of its rights pursuant to this Agreement, and/or (iii) by any End-User in connection with any Content; provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. “Affiliate” means any entity controlling, controlled by, or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.
2.5 June20 hereby agrees to defend, indemnify and hold Customer harmless from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties as a result of any un-Affiliated third party claim or action that alleges the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Services (excluding all Content); provided June20 is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by or on behalf of June20, (ii) resulting in whole or in part in accordance with Customer’s specifications, (iii) that are modified by Customer or any third party not under the control of June20 after delivery by June20, (iv) combined with other products, processes or materials (including, without limitation, Content) where the alleged infringement arises out of such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, and/or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) except as expressly provided herein (including, without limitation, in performance of its obligations and/or exercise of its rights pursuant to this Agreement) not to divulge to any third party any of Disclosing Party’s Proprietary Information, or use such Proprietary Information (i) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Proprietary Information as this Agreement), and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, June20 may collect data with respect to, use, and disclose, the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services (including without limitation, the Content); provided that June20 will not identify (or disclose any information or data that could reasonably be used to identify) Customer or any individual without Customer’s prior written consent.
3.3 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors and/or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, June20 alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services (including, without limitation, the Mobile App) and related software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the software, which are hereby assigned to June20. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or related software, or any intellectual property rights.
4.2 As between the parties, Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer and/or its End-Users to June20 and/or through the Services, including, without limitation, information regarding Customer products and/or services (collectively, “Content”) and the intellectual property rights with respect to that Content. If June20 receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), June20 may (but is not required to) suspend activity hereunder with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants June20 a worldwide, non-transferable, non-sublicensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content solely in connection with June20’s performance of the Services. Without limiting the foregoing, during the Term and subject to all the terms and conditions of this Agreement, Customer hereby grants to June20 a worldwide, non-exclusive, non-transferable license to use and display all Customer trademarks, service marks, logos, symbols, and trade dress (collectively, “Marks”) provided by Customer to June20 for inclusion in the Services (including, without limitation, all Marks included in any Content), solely for the purpose of June20’s provision of the Services, as selected by Customer from time to time. All goodwill resulting from a June20’s use of a Marks shall inure to the benefit of the Customer.
4.3 June20 is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, and to place Customer’s name and logo on its website and marketing materials for this purpose.
5. PAYMENT OF FEES
5.1 Customer will pay June20 the applicable fees as set forth in the Order Form (the “Fees”), without any right of set-off or deduction. All payments will be made in accordance with the payment schedule and the method of payment set forth in the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice. All Fees paid hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on June20's net income) unless Customer has provided June20 with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to June20 on account thereof.
6.1 Unless earlier terminated in accordance with this Section 6, this Agreement shall continue for the Initial Term (as defined in the Order Form). After the Initial Term, this Agreement will automatically renew for successive one-year periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless and until either party provides the other with at least thirty (30) days’ written notice of its intention not to renew prior to the end of the then-current Term.
6.2 Either party hereto may terminate this Agreement upon thirty (30) calendar days’ prior written notice in the event of any material breach of this Agreement by the other party hereto (including, without limitation, by June20 in the event of any breach by Customer of Section 2.2 and/or failure to pay any amounts when due hereunder) that is not cured during such notice period.
6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business, in each case, without a successor.
6.4 Customer’s access to the Services, and any licenses granted hereunder to Customer, shall terminate upon any termination of this Agreement. Subject to the foregoing, the following Sections will survive any termination of this Agreement: 2.2, 2.4, 2.5, 3 through 6, 8 through 10, and any accrued rights to payment.
7. GENERAL WARRANTIES
Each party represents and warrants to the other party that (a) it has the legal right and power to enter into this Agreement, (b) the performance of its obligations and/or exercise of its rights hereunder (including, without limitation, for Customer, its collection, use and/or disclosure to June20 of any personally identifiable information via the Services) will not violate or conflict with (1) any agreements, contracts or other arrangements to which it is a party, or (2) any applicable law and/or regulation, and (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained. June20 represents and warrants to Customer that the Services, when properly installed and implemented by Customer, will perform substantially in accordance with June20’s then-current written documentation as provided to Customer.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED BY JUNE20 IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. JUNE20 HEREBY DISCLAIMS ANY AND ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. JUNE20 SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. JUNE20 DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION AND/OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY HERETO OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WITH RESPECT TO THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) FEES PAID TO JUNE20 HEREUNDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, OR (B) $1,000. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party, except with the other party’s prior written consent; provided that each party may transfer and/or assign this Agreement to a successor in connection with a sale of all or substantially all of its business or assets to which this Agreement relates. Except for any terms between June20 and Customer in connection with Customer's use of an MDM Device, both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties (for clarity, not including End-Users) and supersedes and cancels all previous written and oral agreements, communications and other understandings between the parties hereto relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Neither party will be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.