JOSYS SERVICES AGREEMENT
BY ACCEPTING THIS AGREEMENT, BY (1) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, (2) CLICKING A LINK INDICATING ACCEPTANCE, OR (3) USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Definitions.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party. “Control,” for purposes of this definition, means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and operations of such entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means this Josys Services Agreement.
“Authorized Reseller” means a Person who has entered into an agreement with Josys authorizing them to distribute or resell the Services to Customer.
“Confidential Information” has the meaning given to it in Section 4.1.
“Customer” means (i) in the case of an individual accepting this Agreement on his or her own behalf, such individual, or (ii) in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or legal entity for which such individual is accepting this Agreement, which have entered into an Order Form, Purchase Agreement or Free Trial Services. For purposes of Sections 2.1.1, 2.1.3, 3, 5, 6.5, 7, 8, 9.4 and 10.1.3 only, “Customer” shall not include Tenant.
“Customer Data" means the electronic data or information, including Personal Data, submitted by Customer to the Services or through Josys’ support portal or tool.
“Direct Purchase” means the Services ordered/ purchased by Customer directly from Josys.
“Documentation” means the online documentation and specifications describing the features of the Services and operating instructions on how to properly configure and usethe Services, updated from time to time. They are located at the following URLs:
https://support.josys.com/en/support/solutions (for English)
https://jpsupport.josys.com/hc/ja (for Japanese) or at such other URL Josys may provide from time to time.“DPA” means the most current version of Josys’ Data Processing Addendum available at https://www.josys.com/data-processing-addendum, and incorporated herein by reference.
“End Customer” means a Person that receives managed services from an MSP through MSP’s use of the Services as part of a management service the MSP provides to such Person.
“Free Trial Services” has the meaning given to it in Section 2.1.3.
“Indirect Purchase” means the Services ordered/purchased by Customer though an Authorized Reseller.
“Josys” means the Josys entity described in Section 16.7 below.
“Josys AI” means the features, functionality or tools integrated as part of the Services thatutilize and combine artificial intelligence and large language models with the aim ofquickly and efficiently extracting and analyzing data from Customer Data, provided thatsuch features and functionality are made available at Josys’ sole discretion and subject tothe terms of the Josys AI Addendum.
“MSP” means a Customer that manages its End Customers’ software-as-a-service (hereinafter, “SaaS”) applications using the Services as part of a management service such Customer provides to its End Customers.
“Multi-Tenant Portal” means a feature that is available in the Services that allowsCustomer to manage SaaS applications used by Customer and its Tenants as describedmore fully in Section 2.1.1 and the Documentation.
“Order Form” means, for a Direct Purchase, an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Josys.
“Party” refers to Customer and Josys individually, and “Parties” refer to Customer and Josys collectively.
“Person” means an individual, corporation, partnership, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Data” has the meaning given to it in the DPA.
“Purchase Agreement” means the agreement between Customer and Authorized Reseller that describes the Services to be purchased by Customer, however such agreement is titled. Notwithstanding anything to the contrary, the Purchase Agreement (a) shall not modify any of the terms set forth in this Agreement; and (b) is not binding on Josys.
“Services” means Josys’ SaaS management platform, inclusive of applications, apps, features, tools and components, as described in the Documentation and purchased by Customer under an Order Form Order, a Purchase Agreement, or provided to Customer under a Free Trial Services under Section 2.1.3.
“Tenant(s)” means a Person that is either (i) an intracompany department, division, branch office or Affiliate of Customer or (ii) an End Customer of a MSP, with or without Tenant Level access and use of the Services as described more fully in the Documentation.
“Tenant Level” means tenant level access and use of the Services provided to Tenants as described more fully Section 2.1.2 and in the Documentation.
“Term” has the meaning given to it in Section 10.1.1.
“User” means Customer’s employees, contractors, and agents who are authorized by Customer to access and use the Services for the benefit of Customer in accordance with this Agreement and to whom Customer (or Josys at Customer’s request) has supplied auser identification and password for Services requiring log-in credentials. User also includes employees, contractors and agents of Tenants.
Use of Services.
This Agreement shall govern the use of Services described in an applicable Order Form or Purchase Agreement.
2.1. Use Rights and Obligations. For any Services provisioned to Customer under an Order Form or through a Purchase Agreement, and subject to Customer’s compliance with the terms and conditions of this Agreement including full payment for all purchased Services, Josys grants to Customer a limited, non-exclusive, non-transferable, personal, revocable right to access and use the Services, including any associated downloaded components or apps, in the amounts provisioned for Customer by Josys solely for Customer’s internal use in connection with Customer’s ordinary business operations for the Term. Customer agrees to access and use the Services in compliance with the terms of this Agreement and all applicable laws. Customer may exercise its access and use rights under this Section 2.1 through its Affiliates or third party service providers, provided that such Affiliates and third party service providers must at all times comply with the terms ofthis Agreement, and provided further, Customer shall be responsible for the acts or omissions of such Affiliates and third party service providers as if Customer has acted or failed to act in accordance with the terms of this Agreement.
2.1.1. Multi-Tenant Portal. For a Customer accessing and using Services with the Multi-Tenant Portal feature, in addition to the internal use rights prescribed in Section 2.1 above, Josys grants to such Customer, a limited, non-exclusive, non-transferable, personal, revocable right to access and use the Services, including any associated downloaded components or apps, in the amounts provisioned for Customer by Josys for Customer’s use in its capacity as a managed service provider to provide SaaS application management services to its Tenants, provided that Customer will remain fully responsible at all times for the acts or omissions of such Tenants as if Customer had acted or failed to act in accordance with the terms of the Agreement. In the event Customer wishes to provide Tenant Level access and use of the Services to its Tenants, each Tenant will be required to agree to this Agreement as a condition precedent before such Tenant will be permitted Tenant Level access and use of Services by Josys. Notwithstanding anything to the contrary, no agreement between Customer and its Tenant shall modify any of the terms set forth in this Agreement, nor will such agreement be binding on Josys.
2.1.2. Tenant Level Services. If Customer via the Services requests to provide Tenant Level access and use of Services to a Tenant, such Tenant must agree to the terms and conditions of this Agreement before Josys will make Tenant Level Services available to such Tenant without additional charge for the Term described in Section 10.1.3
2.1.3. Free Trial Services/Evaluations. If Customer registers for, and Josys agrees toprovide Services on a free trial or any other unpaid evaluation basis, Josys will make the Services available to Customer on a trial basis free of charge (hereinafter, “FreeTrial Services”) for the Term described in Section 10.1.4. Customer’s Free Trial Services shall be subject to the terms of this Agreement. Customer is solely responsible for exporting Customer Data from the Free Trial Services prior to termination of Customer’s access to the Free Trial Services.
2.2. Use Restrictions. Customer shall not, and shall not permit any employees, agents, representatives, or Tenants to: (a) use the Services in any manner or for any purpose other than expressly permitted by this Agreement; (b) disclose, sell, assign, lease, commercially exploit or market any part of the Services or Josys Confidential Information in any way or manner; (c) copy, modify, enhance, translate, supplement, create derivative works from, or remove any proprietary notices or labels from any part of the Services or Josys Confidential Information (except to the extent applicable law does not allow this restriction); (d) interfere with or disrupt the integrity or performance of any Services or third party data contained therein, (e) attempt to gain unauthorized access to any Services or its related systems or networks, (f) permit direct or indirect access to or use of any Services in a manner that circumvents a contractual usage limit, (g) except to the extent permitted by applicable law, disassemble, decompile, reverse engineer or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Josys Confidential Information to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services or (3) copy any ideas, features, functions or graphics of the Services, or (h) otherwise use any Services which have not been provisioned by Josys or an Authorized Reseller for Customer’s use under this Agreement.
2.3. Customer Responsibilities. Customer is responsible for use of the Services by all Users to whom it grants its own account credentials. Therefore, Customer must:
Ensure it grants administrator privileges to qualified personnel.
Ensure that Tenants are provided tenant level Services privileges only.
Ensure that its Users do not share their passwords.
Ensure and maintain security of its applications, systems, computers and devices that connect to and use the Services, including implementation of critical patches and operating system updates.
Ensure that it will not permit access to or use of the Services to any User who is either (i) a Designated National or (ii) a national or resident of a Sanctioned Country as defined in Section 12.
Use Josys AI in accordance with the Josys AI Addendum.
2.4. Provision of Purchased Services. Josys will use commercially reasonable efforts to make Services available to Customer 24 hours a day, 7 days a week, except for (a) planned downtime which Customer may subscribe to receive automated notifications from Josys and (b) any unavailability caused by circumstances beyond Josys’ reasonable control, for example, a force majeure event.
2.5. Updates. During the Term, Josys may update the Services to provide new features, functionality, maintain compatibility with emerging standards or technology, or comply with regulatory requirements. Updates to the Services will not materially reduce performance, functionality, security or availability of the Services.
2.6. Ownership; Intellectual Property Protection. Subject to the limited rights expressly granted hereunder, Josys, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer grants to Josys and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Services, but only to the extent that any such feedback does not contain Customer Confidential Information. As between Josys and Customer, Customer owns its Customer Data, and Josys makes no claims to ownership thereto.
Temporary Suspension
3.1. Josys may suspend Customer’s and/or any Tenant’s right to access or use any portion or all of the Services immediately upon written notice to Customer if Josys reasonably determines:
Customer or a Tenant’s use of the Services (a) poses a security risk to the Services or any third party; (b) could adversely impact Josys’ systems, the Services or services of other Josys customers, or (c) could subject Josys or its Affiliates to liability.
Customer or any Tenant is, in material breach of this Agreement;
Customer is in breach of its payment obligations under Section 5;
In the case of an Indirect Purchase, the Authorized Reseller has not paid Josys the applicable fees relating to Customer’s use of the Services; or
Customer or Tenant has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution orsimilar proceeding.
3.2. If Josys suspends Customer’s or any Tenant’s right to access or use any portion or all of the Services, Customer will be responsible for all fees and charges incurred during the period of suspension.
Confidentiality
4.1. Confidential Information. As used herein, “Confidential Information” shall mean (a) as to Josys, any software utilized by Josys in the provision of the Services, and its respective source code; (b) as to Customer, Customer Data; (c) each Party’s business or technical information, including but not limited to the Documentation and SOC2 audit reports (inthe case of Josys), training materials, any information relating to software plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as "confidential" or "proprietary" or the receiving Party knows or should reasonably know is confidential or proprietary; and (d) as to each Party, the terms, conditions, and pricing of this Agreement (but not its existence or Parties).
4.2. Exclusions. Confidential Information shall not include information that: (a) is or becomes known or available to the public, other than through a breach of an obligation hereunder by the receiving Party; (b) is lawfully acquired by the receiving Party from athird party without breach of a confidentiality restriction; (c) the receiving Party can demonstrate by written proof was (i) already in its possession at the time it was disclosed hereunder by the disclosing Party or (ii) was independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (d) has been approved for disclosure by the disclosing Party.
4.3. Confidentiality Obligations. The receiving Party will hold and maintain the disclosing Party’s Confidential Information in confidence, exercising at least the same degree of careas the receiving Party customarily exercises to protect its own proprietary information of similar nature, but in no event with less than reasonable care. The receiving Party will not, without the disclosing’s Party prior written consent: (a) disclose any portion of the Confidential Information to any person or entity other than its and its Affiliates’ directors, officers, employees, agents or consultants who reasonably need access to the Confidential Information to fulfill the permitted uses described herein and who are bound to protect the Confidential Information on terms substantially similar to those in this Agreement; or (b) use Confidential Information except as permitted in this Agreement. Notwithstanding the foregoing, the receiving Party may produce or disclose Confidential Information as required pursuant to applicable laws, regulations or court order, provided that it first gives the disclosing Party notice of the request, if permitted, such that the disclosing Party hasan opportunity to defend, limit or protect such production or disclosure.
Fees and Payment. (Not Applicable to Tenants and Free Trial Services)
5.1. Direct Purchase Services. Sections 5.1.1 thru 5.1.4 apply only to Customers who have purchased Services directly from Josys:
5.1.1. Subscription Fees. The subscription fee and any other fees due for the Services will be reflected in the Order Form. An Order Form constitutes a legally binding commitment to purchase, and the relevant fees are due and non-refundable (except where expressly set out otherwise in this Agreement) even if this Agreement expires or is terminated earlier than the expiration of the relevant subscription term reflected in the Order Form. Customer acknowledges that Josys may change its fees for Services at any time, provided that, any such change shall not affect the Customer’s then-current fees until the end of the subscription term set forth in the applicable Order Form.
5.1.2. Payment Terms. Unless otherwise stated on an applicable Order Form, all invoices are payable in US Dollars within thirty (30) days after the receipt of the relevant invoice. Josys may impose interest on late payments at the lower of 1.2% per month or the maximum rate allowable by applicable law, calculated from the due date until the date of actual payment. Customer shall pay all of Josys’reasonable fees, costs, and expenses (including reasonable attorney’s fees) if any action including legal action is required to collect outstanding undisputed balances.
5.1.3. Disputed Fees. Customer may withhold payment of particular fees that Customer reasonably and in good faith disputes. Any amounts (or portions thereof) not so disputed otherwise will be paid by the applicable payment due date. Customer will notify Josys in writing on or before the payment due date of any disputed fees for which Customer intends to withhold payment and describe in reasonable detail, the reason for such withholding. The Parties agree to diligently pursue an expedited resolution such dispute. Upon resolution of the dispute, anyamounts owed to Josys shall be paid with interest at the rate set forth in Section 5.1.2 above accruing from the date such amounts were originally due. Josys will not exercise its rights under Section 3.1 (Temporary Suspension) or Section 10.2 (Termination for Cause), provided that (a) Customer is disputing the applicable fees reasonably and in good faith and is cooperating diligently to resolve the dispute, and (b) Customer has remitted payment for any undisputed amounts in a timely manner.
5.1.4. Taxes. Josys' fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, consumption, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Josys has the legal obligation to pay orcollect Taxes for which Customer is responsible under this section, Josys will invoice Customer and Customer will pay that amount unless Customer provides Josys with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Josys is solely responsible for taxes assessable against it based on its income, property and employees.
5.2. Direct and Indirect Purchase Services. The following provision applies to Customers who have purchased Services directly from Josys and indirectly from Authorized Resellers:
5.2.1. Usage Capacity Limits. The Services and fees are subject to usage capacity limits (based on total IDs or Users) specified in the applicable Order Form or Purchase Agreement. If Customer exceeds a contractual usage capacity limit, Josys may consult with Customer to reduce Customer’s usage so that it complies with that capacity limit. If Customer is unable or unwilling to comply, upon Josys’request, Customer will promptly execute an Order Form or Purchase Agreement for additional quantities of the applicable Services at Josys’ then current applicable list prices and pay any invoice for such excess usage in accordance with Section 5.1.2 (for Direct Purchases) and the Purchase Agreement (for Indirect Purchases), subject to any additional remedies Josys may have under this Agreement.
Warranty.
6.1. Performance Warranty. Josys warrants to Customer that during each subscription term: (a) Josys will not materially decrease the overall functionality and security of the Services; and (b) Josys will use reasonable efforts designed to ensure that Services, when and as provided by Josys, are free from any viruses, malware or similar malicious code (each, a“Performance Warranty”).
6.2. Performance Warranty Remedy. If Josys breaches a Performance Warranty and Customer makes a reasonably detailed warranty claim promptly after discovering the issue, Josys will use reasonable efforts to correct the non-conformity. If Josys determines such remedy to be impractical, either Party may terminate the affected Subscription Term. Josys will then refund any pre-paid, unused fees for the terminated portion of the SubscriptionTerm. The foregoing remedies constitute Customer’s sole and exclusive remedies and Josys’ entire liability for breach of a Performance Warranty.
6.3. Exclusions. The warranties in this Section do not apply to: (a) the extent the issue or non-conformity is caused by Customer’s (including its Tenant’s) unauthorized use or modification of the Services, (b) unsupported releases of the Services or (c) third party products. Josys does not warrant that the Services will operate in the combinations that Customer may select for use, or that the use or availability of the Services will be uninterrupted or error-free, or that all errors in the Services will be corrected.
6.4. OTHER THAN THE EXPRESS WARRANTIES MADE BY JOSYS HEREIN, THE PARTIES ACKNOWLEDGE THAT THE SERVICES PROVIDED TO CUSTOMER PURSUANT TO AND FOR THE PURPOSES OF THIS AGREEMENT ARE PROVIDED "AS IS," “AS AVAILABLE,” AND WITHOUT ANY WARRANTY WHATSOEVER. JOSYS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS ,IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS. NO JOSYS AGENT OREMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. TO THE EXTENT THE LAWS OF CUSTOMER’S JURISDICTION DO NOT PERMIT SUCH DISCLAIMER WITH RESPECT TO THE SERVICES AS PURCHASED HEREUNDER, JOSYS PROVIDES ONLY THE MINIMUM LAWFUL WARRANTY BEYOND THAT WARRANTY EXPRESSLY MADE ABOVE AND DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMERS IN THIS SECTION ARE A MATERIAL PART OF THIS AGREEMENT, AND JOSYS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH DISCLAIMERS.
6.5. The warranties set forth in Section 6.1 above apply to purchased Services only, and do not apply to Free Trial Services. Moreover, any Tenant warranty claims shall be brought by MSP or Customer directly against Josys.
Support.
7.1. Direct Purchase Services. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement including full payment for the Services, Josys will provide customer support with respect to Customer’s use of the Services.
7.2. Indirect Purchase Services. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement, the Authorized Reseller will provide customer support with respect to Customer’s use of the Services. In the event that Authorized Reseller is unable to resolve the support issue, the Authorized Reseller may escalate the support issue to Josys. Customer will not have direct access to Josys for customer support. Josys will only be obligated to respond to escalation inquiries from the Authorized Reseller.
7.3. Tenants. All requests for support from Tenants shall be made through MSP or Customer. Tenants will not have direct access to Josys for customer support. Josys will only be obligated to respond to Tenant support requests brought by MSP or Customer.
7.4. Free Trial Services. Support is not provided for Free Trial Services.
Indemnification.
8.1. Indemnification by Josys: Josys will defend Customer against any third party claim alleging that the Services infringes that third party’s registered patent or copyright or misappropriates any trade secret (collectively, “Infringement Claims”), and will pay any costs and damages finally awarded by the court to said third party or settlement agreed to by Josys. In any Infringement Claim, Josys may, at its sole option and expense: (a) procure for Customer the right to continue using the applicable Services under the terms of this Agreement; (b) replace or modify the alleged infringing portion of the Services with a non-infringing and substantially functional equivalent; or (c) if options (a) and (b) above are not reasonably commercially available or practicable, then Josys may terminate the affected portion of the Services or this Agreement, in which case Josys will refund a pro rata portion of any prepaid fees (through the Authorized Reseller in the case of an Indirect Purchase) for such affected Services (or portion thereof) equal to the period of time from the date of termination to the end of the then-current subscription term. Josys will have no liability for any Infringement Claim described in this Section to the extent that it would not have occurred but for: (a) modifications to the Services made by Customer or a party acting on Customer's behalf; (b) the combination, operation or use of the Services with equipment, devices, web-based or offline software application, or data not supplied by Josys; (c) Customer’s failure to use updated or modified forms of the Services provided by Josys; or (d) Customer’s use of the Services other than in accordance with this Agreement. The provisions of this Section set forth Josys’ sole and exclusive obligations, and Customer’ssole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights.
8.2. Indemnification by Customer. Customer will defend Josys against any third party claim arising from: (a) Customer’s or any Tenant’s use of the Services in an unlawful manner or in breach of this Agreement; (b) any Customer Data, or Customer’s (or Tenant’s) use of Customer Data (or Tenant’s Data) with the Services; and, (c) any dispute between Customer and any of their Tenants (collectively, “Indemnified Claims”), and will pay any costs and damages finally awarded by the court to said third party or settlement agreed to by Customer. Customer’s indemnity obligations in this Section will not apply if such third party claim against Josys arises from Josys’ breach of this Agreement.
8.3. Indemnification Procedures. Each Party’s indemnification obligations under thisSection 8 are conditioned upon the indemnified Party (the “Indemnitee”): (a) promptly notifying the indemnifying Party (the “Indemnitor”) in writing of the claim, demand, action or other proceeding by a third party (the “Claim”); (b) granting the Indemnitor sole control of the defense and settlement of the Claim; and (c) providing the Indemnitor with all assistance (at Indemnitor’s expense), information, and authority reasonably required for the defense and settlement of the Claim.
LIMITATION OF LIABILITY.
9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO (A) THE INDEMNIFICATION OBLIGATIONS IN SECTION 8, (B) EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, OR (C) CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT AND/OR UNDER THE PURCHASE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. FOR FREE TRIALS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED ONE HUNDRED U.S. DOLLARS ($100.00) OR EQUIVALENT IN JAPANESE YEN.
9.2. Exclusion of Damages. EXCEPT WITH RESPECT TO: (A) EITHER PARTY’SVIOLATION OF, OR UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF, THE OTHER PARTY’S INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE FOR ANY BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF COMPETITIVE ADVANTAGE, LOSS OF OR CORRUPTION TO DATA, LOSS OF GOODWILL, DAMAGE TO BUSINESS REPUTATION, ANY CLAIMS FROM THIRD PARTIES (EXCEPT IN RESPECT OF THIRD PARTY CLAIMS ONLY AS SET OUT IN SECTION 8), ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND LOSS OF USE), OR EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
9.3. Mitigation. Each Party has a duty to mitigate damages and losses that would otherwise be recoverable from the other Party pursuant to this Agreement (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or amounts.
9.4. Tenants. Any damages and losses of any Tenant, shall be deemed to be damages and losses of MSP or Customer, subject to the limitations on liability set out in Section 9.1. In no event may such MSP or Customer and any of their Tenants recover twice in respect of the same damage or loss. Customer, MSP and Tenant agree that:
no proceedings shall be brought by any Tenant other than MSP or Customer directlya gainst Josys pursuant to this Agreement; and,
any claims, actions or proceedings arising out of this Agreement, including in relation to breach of contract, tort (including negligence), or any act or omission ofJosys or other party for whom Josys is responsible shall be brought by the MSP or Customer. MSP or Customer shall for the purposes of this Section 9.4 be entitled to bring proceedings on behalf of its Tenants, in respect of any damages or losses incurred by a Tenant and deemed to be the damages and losses of MSP or Customer pursuant to Section 9.4.
Term and Termination.
10.1. Term.
10.1.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions and/or Free Trial Services hereunder have expired orhave been terminated (the “Term”).
10.1.2. Term of Purchased Services. The term of each subscription for purchased Services shall be as specified in the applicable Order Form or Purchase Agreement. Except as otherwise specified in an Order Form or Purchase Agreement, the subscription term will automatically renew for an additional period equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other written notice of its intent not to renew at least thirty (30) days before the endof the relevant subscription term. For Direct Purchases, except as expressly providedin the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Josys’ applicable list price in effect at the time of the applicable renewal.
10.1.3. Term of Services for Tenants. The term of Services for a Tenant shall begin on the date Josys makes the Services available to Tenant and shall extend (a) for the period in the applicable Order Form or Purchase Agreement signed by the MSP or Customer of such Tenant or (b) termination by the MSP or Customer of such Tenant in their sole discretion.
10.1.4. Term of Free Trial Services. The term of each Free Trial Services shall extend until (a) the expiry of the online access granted in respect of such Free Trial Services, or (b) the start date of any purchased Service subscriptions ordered by Customer for such Service, or (c) termination by Josys in its sole discretion.
10.2. Termination. This Agreement may be terminated: (a) by a Party immediately by written notice upon the occurrence of either of the following events: (i) if the other Party ceases to do business; or (ii) if the other Party becomes insolvent or seeks protection underany bankruptcy, receivership, creditor's arrangement, or comparable proceeding, or if any such proceeding is instituted against the other Party and not dismissed within ninety (90)days; and (b) by the non-breaching Party for cause if the other Party breaches any of its material obligations under this Agreement, including failure to timely pay fees, and fails tocure such breach within thirty (30) days following receipt of written notice from the non-breaching Party.
10.3. Effect of Termination.
10.3.1. In General. Upon termination or expiration of this Agreement:
Except as provided in Sections 10.3.1 (c) and 10.3.2 below, all Customer’s rights under this Agreement immediately terminate and Customer will cease all use of all Services provided hereunder;
Customer will immediately return, or destroy upon Josys’ request, all copies of any part of the Services and Josys Confidential Information then in Customer’s possession or under Customer’s control; and,
The terms in Sections 2.2, 2.6, 4, 5, 9, 10.3, 13, 14 and 16 will survive any termination or expiration of this Agreement in accordance with their terms, and Sections 11.1 and 11.2 will survive any termination or expiration of this Agreement for so long as Josys retains possession of Customer Data.
10.3.2. Post-Termination. Unless Josys terminates this Agreement pursuant to Section 10.2, for a period not exceeding 30 days following the effective date of expiration or termination of this Agreement, Josys will allow Customer to retrieve all Customer Datafrom the Services only if Customer has paid all amounts due under this Agreement and has prepaid fees for any use of the Services after the effective date of termination.
Data Privacy/Data Security.
11.1. DPA. To the extent Josys’ provision of the Services under this Agreement is deemed under Applicable Data Protection Laws to involve the Processing of Customer Personal Data, where the Customer acts as the Controller of such Personal Data (as those terms are defined in the DPA), the DPA shall apply.
11.2. Technical and Organizational Measures (“TOMs”). During the Term of this Agreement, Josys shall maintain a formal security program materially in accordance with industry standards that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; (iii) prevent unauthorized access to Customer Data. Such security program will conform to the TOMs identified in the DPA, which may be updated from time to time, and which are incorporated herein by reference.
11.3. Third Party Services. Customer acknowledges and agrees that the Services enable Customer to connect or enable integrations with third-party SaaS applications, services, software, networks, systems, directories, websites, databases information, and devices, and which facilitate the unilateral or bilateral transfer of data to, from, or with the Services, that are not owned, or controlled, by Josys (each a “Third- Party Service”). If Customer enables, accesses, or uses Third-Party Services in connection with the Services, Customer’s access and use of such Third-Party Services are governed solely by the terms and conditions, privacy policy and/or any other agreement of such Third-Party Services, if any. Josys does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Customer Data), or any interaction between Customer and the provider of such Third-Party Services. Accordingly, Josys encourages Customer to read the terms and conditions and privacy policies of each Third-Party Service. Josys cannot guarantee the continued availability of such Third-Party Services and may cease enabling access to them with or without notice and without entitling Customer to any refund, credit, or other compensation. Customer hereby irrevocably waives any claim against Josys with respect to such Third-Party Services and acknowledges and agrees that Josys is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of Third-PartyServices, or Customer’s reliance on the data privacy and security practices or other policies of such Third-Party Services. Customer shall resolve any dispute with, and bring all actions, claims or proceedings against, the Third-Party Service provider directly. Customer may be required to subscribe (for free or subject to payment of applicable fees), register for, or log into such Third-Party Services on their respective websites. By enabling any Third-PartyServices in connection with the Services, Customer is expressly permitting Josys to disclose Customer’s login and Customer Data to or receive information from the provider of the Third-Party Service, as necessary to facilitate the use or enablement of such Third-Party Services with the Services.
Compliance with Laws
12.1. Export Compliance. The Parties understand that U.S., Japan and any other relevant, local export laws and regulations (collectively, “Export Laws”) apply to the Services. Customer will comply with all Export Laws. Customer will not export or re-export, eitherdirectly or indirectly, the Services in violation of these laws, or use any of the foregoing for any purpose prohibited by Export Laws. Customer further represents and warrants that it is not (i) located in, or a national or resident of, a country subject to embargo or sanction under the Export Laws (collectively, “Sanctioned Countries”), or (ii) a Person listed on the U.S. Department of Commerce’s Table of Denial Orders or the U.S. Department of Treasury’s List of Specially Designated Nationals (collectively, “Designated Nationals”). Moreover, Customer will not permit access to or use of the Services to any Tenant or User who is either (i) a Designated National or (ii) a national or resident of a Sanctioned Country.
12.2. Anti-Social Forces Compliance (Applicable only to Customers Domiciled in Japan).
12.2.1. Each Party represents that neither itself nor any of its major investors, officers, any person who effectively controls its management falls under any of the following categories:
an organized crime group, a member of an organized crime group, an associate member of an organized crime group, a company associated withan organized crime group, corporate racketeer or any others equivalent there to (collectively referred to as “Anti-Social Forces”); or,
have any relationship with or make utilization of Anti-Social Forces.
12.2.2. Each Party represents that neither itself nor through us of third parties engages in any of the following conduct:
make a demand using violence;
use threatening behavior or violence in connection with transactions;
damage the reputation or obstruct the business of the other Party by spreading false rumors, using fraudulent measures or power; or
any other acts equivalent to the foregoing.
12.2.3. Each Party may immediately terminate this Agreement without any prior notice or demand to the other Party, if it objectively and reasonably determines that the otherParty has committed a breach of any provision under Section 12.2.
12.2.4. If this Agreement is terminated based on the preceding clause, the terminating Party shall not be liable for any damages caused by said termination, and may claim compensation from the other Party for any damages it has incurred as a result of said termination.
Audit
Upon reasonable notice and written request, Customer will provide Josys with reports, summaries or other documents reasonably designed to allow Josys to audit Customer’s compliance with the use of the Services under this Agreement. Josys will handle all such documents in accordance with the terms of Section 4 herein.
Force Majeure
Each Party shall be relieved of its obligations under this Agreement, and neither Party shall be liable to the other party under this Agreement, for any liability, loss, damage,fine, penalty, sanction, cost or expense incurred by a Party as a result of any event or condition that directly or indirectly prevents the Party from performing an obligation hereunder, is beyond the reasonable control of the Party, and could not, by the exercise of due diligence, have been avoided in whole or in part by the Party, including, without limitation: any act of God, natural disaster, pandemics, epidemics, war, riot, blockade, insurrection, terrorism, sabotage, internet service provider failure or delay, denial of service attacks (including, but not limited to, state ornation-sponsored denial of service attacks), virus or hacking attacks for which there is no commercially reasonable, known solution (including, but not limited to, intentional/targeted hacking by or on behalf of nation states), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike other than involving Josys employees), lockout, failure in electrical power or telecommunication services, or other similar industrial disturbance.
Open Source Software
The Josys software incorporated in the Services contains open source software (“OSS”) that is covered by a different license. Josys’ obligations set forth in this Agreement do not extend to any such OSS. Customer agrees that all such OSS shall be and shall remain subject to the terms and conditions under which it is provided. Notice regarding any such OSS and its applicable license terms shall be made available on Josys’ website. Neither the OSS nor its associated license terms shall restrict Customer’s use of the Services or limit Customer’s rights or remedies under this Agreement.
General Provisions.
16.1. Assignment. Neither Party may assign this Agreement or any right or obligation hereunder without the other Party’s prior written consent; provided, however that Josys may assign this Agreement or any right or obligation hereunder to a subsidiary or Affiliate or a successor in interest in case of a merger or acquisition of Josys or in case of a transfer of all or substantially all of its assets, or the assets of a major division, to another entity. This Agreement will be binding upon and inure to the benefit of the parties here to and the irrespective successors and assigns.
16.2. Third-Party Beneficiaries/Independent Contractors. No person or entity other than the Parties here to will have any right to enforce or seek enforcement of this Agreement. There are no third-party beneficiaries to this Agreement. Each Party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other Party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the Parties.
16.3. Entire Agreement/Order of Precedence. This Agreement, together with applicableOrder Forms, the documents linked hereto and any exhibit(s) (as applicable) referencedherein, constitutes the entire understanding between Customer and Josys with respect to the subject matter hereof. No terms or conditions set forth in any purchase order or other document provided by Customer to Josys shall be part of any agreement between Josys and Customer unless specifically accepted by Josys in writing. In the event of a conflict between the terms of this Agreement and the terms of an Order Form (other than payment terms), a document linked hereto or any exhibit(s) (as applicable) referenced herein, the terms of this Agreement shall take precedence and control unless the Order Form or other document explicitly references and overrides a provision of this Agreement.
16.4. Waiver. Any express waiver or failure to exercise promptly any right under thisAgreement will not create a continuing waiver or any expectation of non-enforcement.
16.5. Severability. If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed severable from the remaining provisions ofthis Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless such omission would frustrate the intent of the parties, in which case this Agreement may be reformed to give effect to the other provisions hereof.
16.6. Modifications. As Josys’ business and Services evolve, Josys may update this Agreement and post the updated Agreement here (or a successor site). Josys will provide Customer with reasonable prior notice to material changes taking effect, via the Services, email or by posting the updated terms on our website. Customer can review the most current version of the Agreement at any time by visiting the Josys website. The revised Agreement will become effective upon posting of the change. If Customer accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
16.7. Applicable Josys Entity, Governing Law and Venue. The Josys entity entering in to this Agreement, the address to which Customer should direct notices under this Agreement,the governing law, and venue, depend on where the Customer is domiciled or incorporated.
16.7.1. For Customers domiciled in Japan:
The Josys entity entering into this Agreement is Josys Inc., a Japanesecorporation.
All notices related to this Agreement shall be made in writing and shallbe effective upon (i) personal delivery, (ii) the second business day after mailing and (iii) the day of emailing (provided that notices of terminationand indemnifiable claims shall also be sent by the processes described in (i) and (ii) in addition to email). Notices should be addressed to: Azabudai Hills 23F, 1-3-1 Azabudai, Minato-ku, Tokyo 106-0041, Japan, attn: VP Sales, and/or emailed to: int-legal@josys.com.
The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of Japan, without giving effect to principles of conflicts of law. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and exclusively resolved by the Tokyo District Court, as the court of final instance.
16.7.2. For Customers domiciled outside of Japan:
The Josys entity entering into this Agreement is Josys InternationalPte., Ltd., a Singapore corporation.
All notices related to this Agreement shall be made in writing in English and shall be effective upon (i) personal delivery, (ii) the second business day after mailing (or, if posted internationally, the fifth business day after mailing), and (iii) the day of emailing (provided that notices of termination and indemnifiable claims shall also be sent by the processes described in (i) and (ii) in addition to email). Notices should be addressed to: 600 NorthBridge Road, #12-04 Parkview Square, Singapore, 188778, attn: Managing Director, and/or emailed to: int-legal@josys.com.
The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of Singapore, without giving effect to principles of conflicts of law. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shallbe referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIACRules) for the time being in force, which rules are deemed to be incorporated by reference in this Section. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator appointed by the SIAC. The language of the arbitration shall be English.
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