1.1 The individual (the " User ") opening the account on Joonko Diversity's website (the "Account ") does this on behalf of its organization (the " Customer "). In order to use the Service, the User must provide truthful, accurate, and current information about himself/herself, including such User's email address at the Customer's domain, as well as additional set-up information (“ Registration Data ”).
The User must also provide technical information about the Customer's platform for which Customer wishes to use the Service (jointly with the Registration Data and additional data generated by the Service: “ Customer Configurations ”) . As part of the Account set-up and registration process, User (on behalf of the Customer) will choose a username and a password. User and the Customer will be responsible for maintaining the confidentiality of User's password, and agree not to transfer the use of, or access to, the Service to any third party. Customer will indemnify Joonko Diversity and the Related Parties (as defined below) from and against any and all Damages (as defined below) that are based on or arise directly or indirectly out of or from any use of, or access to, the Service to any third party.
Customer is fully and solely responsible for any and all activities that occur through the Account. Joonko Diversity cannot and will not be liable for any loss and/or damage resulting from Customer’s failure to comply with this security obligation. Customer agrees to immediately notify Joonko Diversity of any unauthorized use of User's password or the Account or any other breach of security, and to simultaneously make sure that the User resets his/her password.
1.3 The User accepting these Terms on behalf of Customer hereby represents and warrants that she/he has the authority to bind the Customer. IF USER DOES NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, USER WILL INDEMNIFY, DEFEND AND HOLD JOONKO DIVERSITY AND ITS RELATED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES THAT ARE BASED ON OR ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM THE USE OF THE SERVICE BY THE USER ON BEHALF OF THE CUSTOMER.
2.1 Non-Exclusive License . Subject to and conditioned upon Customer acceptance of these Terms and Customer ongoing compliance with these Terms, Joonko Diversity grants Customer a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Service, solely for Customer’s own internal business use (except as set forth in Section 11 below), and in strict compliance with these Terms.
2.2 Changes in the Service . Joonko Diversity makes continuous efforts to constantly improve the Service for the benefit of its customers. Therefore, Joonko Diversity may make changes to the Service from time to time, including removing any feature or functionality of the Service. Joonko Diversity will use reasonable efforts to provide the Customer with a reasonable notice prior of any material change in the Service.
2.3 Restrictions . Customer’s use of, and access to the Service is conditioned upon Customer compliance with these Terms, including that Customer will not, nor will Customer allow, any third party to: (a) copy, modify, adapt, translate or otherwise create derivative works of the Service; (b) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Service; (c) rent, lease, sell, sublicense, assign or otherwise transfer rights in or to the Service; (d) remove any proprietary notices or labels on the Service; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; (f) develop any other product or service containing any of the concepts and ideas contained in the Service or use the Service for the purpose of building a similar or competitive product; (g) test the Service or use the Service in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without Joonko Diversity prior written approval; (h) directly or indirectly take any action to contest Joonko Diversity’s intellectual property rights or infringe them in any way; (i) make the Service available for timesharing, application service provider or service bureau use; and (j) remove, obscure, or alter any notice of copyright, Joonko Diversity's Marks (as such term is defined below), or other proprietary right appearing in or on any item included with the Service .
3.1 Mutual Representations
3.1.1. Each party has the full power, legal capacity, and authority to enter into, deliver and fully perform its respective obligations set forth in these Terms; and
3.1.2. The execution or performance of these Terms will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound.
3.2 Customer's Representations
Customer represents and warrants that:
3.2.1. It will not use the Service for any illegal or unauthorized purpose or infringe or promote the infringement of any intellectual, proprietary or other right of any party, and Customer will comply with all applicable laws and regulations(including, but not limited to, all applicable import and export laws , copyright and privacy laws) in Customer’s use of and access to the Service.
3.2.2. Customer holds and maintains all personal information in compliance with any and all applicable laws, and that Customer is allowed to use the Service in connection with such personal information.
4.1 Joonko Diversity's Intellectual Property Rights
4.1.1. The Service and all of the intellectual property rights in the Service (including Joonko Diversity's Marks) are, and shall remain, Joonko Diversity exclusive property, including but not limited to, any modifications or custom features to the Service that may be developed by Joonko Diversity for Customer’s benefit, whether requested or instructed by Customer or not, even if Customer has paid for such modifications, except if Joonko Diversity and Customer have a separate written agreement that specifically states otherwise and references this Section .
Any error and bug reports, additional features, ideas, requests, feedbacks, recommendations, comments, concepts and other requests or suggestions related to the Service (collectively “ Ideas ”) that Customer may provide to Joonko Diversity, will be solely owned by Joonko Diversity. Customer hereby irrevocably assigns and transfers any intellectual property rights in such Ideas to Joonko Diversity, free of charge.
All of Joonko Diversity's trademarks, any service marks, logos, domain names, copyrights and other proprietary rights associated with Joonko Diversity and the Service, whether registered or non-registered, shall be collectively be referred to as " Joonko Diversity's Marks " . Customer agrees not to directly or indirectly (and not to allow any third party to): (a) use Joonko Diversity's Marks for any purpose (other as detailed hereunder) without Joonko Diversity’s express written consent; and (b) register, attempt to register, or assist anyone else to register any Joonko Diversity's Marks or marks confusingly similar thereto .
4.2 Customer's Content
4.2.2. Customer authorizes Joonko Diversity to use Customer's name, logo and other applicable trademarks, at any time, for the purpose of referencing Customer as a customer of the Service or in other promotional marketing materials. If Customer does not wish to be referenced, the Customer may contact Joonko Diversity at email@example.com .
5.1 Each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party, except to carry out its rights and obligations under these Terms, and that it will take all reasonable measures to maintain the confidentiality of all other party's Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance .
“ Confidential Information ” shall mean any proprietary information of either party, including but not limited to, all computer software (in object code or source code form), programs, designs, concepts, scientific, algorithmic and structural information included in, or related to, the Service, information of a business and commercial nature (such as financial and marketing information disclosed in any form or medium whatsoever). Confidential Information includes all information designated by either party as confidential or proprietary within a reasonable time of its disclosure or which a reasonable person would expect to be treated as confidential. “Confidential Information” will not include information that (a) is in or enters the public domain without breach of these Terms; (b) is lawfully obtained from a third party without breach of a nondisclosure obligation; (c) is already in the possession of the receiving party as shown by its dated written records; or (d) is required by law to be disclosed, provided that the receiving party gives prompt written notice of such requirement prior to disclosure, and reasonably assist the disclosing party in avoiding or limiting such disclosure, all subject to applicable law.
5.2 The receiving party acknowledges that the disclosure of Confidential Information could cause substantial harm to disclosing party that could not be remedied by the payment of damages alone. Accordingly, disclosing party will be entitled to preliminary and permanent injunctive relief and other equitable relief in any relevant jurisdiction for any breach of this Section 5 or misuse of Confidential Information by the receiving party.
5.3 Upon termination of these Terms, each party will immediately return to the other party or destroy all copies of the other party’s Confidential Information in its possession or control.
6.1 Fees . In consideration for the Service, Customer shall pay Joonko Diversity the fees agreed between Customer and Joonko Diversity (the “ Fees ”).
6.2 Taxes . In case Customer is legally required to withhold any income or remittance tax from amounts payable to Joonko Diversity, then (a) Customer will promptly notify Joonko Diversity; (b) the amounts payable to Joonko Diversity will be automatically increased to the full extent required to offset such tax, so that the amount remitted to Joonko Diversity, net of all taxes, equals the amount stated in the invoice; and (c) Customer will provide Joonko Diversity with the official receipt of payment of such taxes to the appropriate taxing authority.
7.1 Term and Termination
7.1.1. Term of these Terms . These Terms will enter into effect once accepted by Customer in the registration process and/or by its actual use of the Service, and shall remain in effect for an indefinite period of time so long as Customer uses the Service, unless terminated by a mutual agreement of both parties.
7.1.2. Customer may cease using the Service at any time by providing Joonko Diversity with a 30 days prior written notice by writing an email to firstname.lastname@example.org , except that in the event the Customer signed up for an annual plan he shall not be entitled to terminate such plan. Joonko Diversity shall not refund Customer for any amount paid by Customer to Joonko Diversity in advance following the termination.
7.1.3. Joonko Diversity may terminate these Terms and the licenses granted hereunder, in any case of a material breach by Customer (including non-payment of Fees) of these Terms and/or any applicable law, which has not been cured by Customer within fourteen (14) days following a written notice thereof from Joonko Diversity.
7.1.4. In respect to any free of charge licenses, such as trial licenses, Joonko Diversity may terminate the license and these Terms at any time by providing Customer with a thirty (30) days prior notice.
7.2 Consequences of Termination
Upon any termination of a license to use the Service, the following shall apply:
7.2.1. All rights granted to Customer under the applicable license shall immediately terminate.
7.2.2. If the license terminated was the last license used by Customer, then Joonko Diversity may suspend or delete the respective Account(s).
7.2.3. The expiration or termination of the license shall not relieve Customer of any obligation intended to survive under these Terms, including but not limited to, Sections 1.1, 1.3, 4.1, 5, 7.2, 8, 10, and 11.2.
Customer hereby agrees to indemnify, defend and hold Joonko Diversity and its directors, employees, service providers, agents, sub-contractors, representatives, and anyone on Joonko Diversity's behalf (the " Related Parties ") harmless from and against any and all claims, including related judgments, awards, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) and other expenses (collectively " Damages ") that are based on or arise directly or indirectly out of or from (a) Customer breach of these Terms; (b) any misuse of the Account(s) by Customer and any third party on Customer’s behalf; (c) any breach ofCustomer 's representations and warranties set forth herein; and (d) Customer or Customer employees’ or personnel’s negligence or willful misconduct.
9.1 CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, JOONKO DIVERSITY AND ITS RELATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 JOONKO DIVERSITY AND ITS RELATED PARTIES DO NOT WARRANT: (A) THAT THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS; (B) THAT CUSTOMER’S USE OF THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER WILL BE UNINTERRUPTED; OR (C) THAT DEFECTS, IF ANY, WILL BE CORRECTED.
9.3 The foregoing exclusions and disclaimers are an essential part of these Terms and formed the basis for determining the price charged for the Service and any related services. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to Customer.
9.4 Joonko Diversity may provide hyperlinks to other websites or resources. Because Joonko Diversity has no control over such sites and resources, Customer acknowledges and agrees that Joonko Diversity shall not be responsible for the availability of such sites or resources, nor shall Joonko Diversity be responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When Customer accesses these third-party sites, Customer does so at Customer own risk, and Customer should refer to each such website’s individual “Terms of Service” and not rely on these Terms in any way.
10.1 JOONKO DIVERSITY , AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, LOST PROFITS OR OTHER INTANGIBLE LOSSES), UNDER ANY THEORY OF LAW INCLUDING UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND ANY RELATED SERVICES PROVIDED TO CUSTOMER (EVEN IF JOONKO DIVERSITY OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE).
Some jurisdictions may not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above may not apply to customer. In such jurisdictions, liability is limited to the fullest extent permitted by law.
10.2 WITHOUT DEROGATING OF THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10, CUSTOMER FURTHER AGREES THAT JOONKO DIVERSITY AND ITS RELATED PARTIES SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY CUSTOMER IN CONNECTION WITH LOSS OF DATA, ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, COMMUNICATIONS LINE FAILURE, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF JOONKO DIVERSITY AND/OR ITS RELATED PARTIES, ALL IRRESPECTIVE OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, EVEN IF JOONKO DIVERSITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, JOONKO DIVERSITY'S AND ITS RELATED PARTIES' TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS ACTUALLY RECEIVED BY JOONKO DIVERSITY FROM CUSTOMER FOR THE SERVICE PROVIDED TO CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE CIRCUMSTANCES FIRST GIVING RISE TO THE CLAIM OF LIABILITY (THE "CAP AMOUNT "); EXCEPT THAT IF SUCH LICENSE WAS PROVIDED TO THE CUSTOMER FREE OF CHARGE, THEN THE CAP AMOUNT SHALL BE LIMITED TO US$1,000.
10.4 These Terms shall not confer any rights or remedies upon any person or entity on behalf of Customer other than the Customer.
11.1 No waiver by either party of any default shall be deemed a waiver of any prior or subsequent default of the same or other provisions of these Terms, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
11.2 If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from these Terms.
11.3 Joonko Diversity may freely assign its rights and responsibilities hereunder without notice to Customer. These Terms are not assignable, transferable or sublicenseable byCustomer except with Joonko Diversity prior written consent.
11.4 These Terms constitute the entire understanding between Customer and Joonko Diversity, and revoke and supersede all prior agreements between the parties, and are intended as a final expression of the parties' agreement.
11.5 Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
11.6 Joonko Diversity reserves the right at any time to modify these Terms. Any such modification will be effective immediately upon posting the amended Terms on Joonko Diversity's website or by sending an electronic mail to Customer. Customer’s continued use of the Service after the effective date of any such modification will be deemed acceptance of such modified Terms.
11.7 If the Service was provided by Joonko Diversity Inc. all disputes arising out of these terms will be subject to the governing law of New York and the exclusive jurisdiction of the competent courts located in the city of New York, New York. The parties understand and fully agree that they are giving up their right to have a trial by jury.
The parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit either party from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms .
11.8 Notices and all other communications provided for in these Terms shall be in writing and shall be deemed to have been duly given when personally delivered or sent by email to email@example.com provided that the recipient confirmed the receipt of such notice, or certified mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth on the respective Ordering Document or last given by each party to the other. Such notice, demand or other communication shall be deemed given (a) if sent by an email - upon receipt of confirmation as set forth above; (b) at the expiration of seven (7) days from the date of mailing by registered mail; or (c) immediately if delivered by hand.