Terms of Service Updated: 3/12/23
Author: Office of Compliance at Journey
Terms of Service
Journey Trusted Identity Platform
IMPORTANT – READ CAREFULLY.
THESE TERMS OF SERVICE ARE MADE AND ENTERED INTO BY AND BETWEEN JOURNEY.AI, INC., A DELAWARE CORPORATION, LOCATED AT 1001 BANNOCK STREET, SUITE 522, DENVER, COLORADO 80204 (“JOURNEY”), AND THE CORPORATION, COMPANY, OR OTHER BUSINESS ENTITY (“SUBSCRIBER”) ACCEPTING THESE TERMS OF SERVICE OR OTHERWISE USING OR ACCESSING THE JOURNEY PLATFORM (AS DEFINED HEREIN) OR UTILIZING JOURNEY SERVICES. JOURNEY AND SUBSCRIBER ARE EACH SOMETIMES REFERRED TO HEREIN AS “PARTY” AND COLLECTIVELY AS THE “PARTIES.”
SUBSCRIBER REPRESENTS THAT IT HAS AUTHORIZED THE PERSON ACCEPTING THESE TERMS TO BIND SUBSCRIBER TO THESE TERMS. THE PERSON ACCEPTING THESE TERMS ON SUBSCRIBER’S BEHALF REPRESENTS THAT THEY HAVE READ THESE TERMS IN FULL AND HAVE FULL LEGAL AUTHORITY TO LEGALLY BIND SUBSCRIBER TO THESE TERMS. SUCH PERSON’S ONLINE OR OTHER ELECTRONIC ACCEPTANCE OF THESE TERMS WILL HAVE THE SAME LEGAL EFFECT AS IF THEY WERE PROVIDING A HANDWRITTEN SIGNATURE OF ACCEPTANCE.
BY EXECUTING THESE TERMS (OR AN ORDER FORM INCORPORATING THESE TERMS), CLICKING/CHECKING THE “AGREE” BOX, OR ACCESSING THE JOURNEY PLATFORM, SUBSCRIBER AGREES TO BE BOUND BY THESE TERMS OF SERVICE, AND ALL EXHIBITS, ACCEPTED ORDER FORMS, AND DOCUMENTS AND POLICIES INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY ALL OF THE FOREGOING CONSTITUTE THESE “TOS”). DO NOT ACCEPT OR EXECUTE THESE TOS, OR ACCESS OR USE THE JOURNEY PLATFORM OR ASSOCIATED SOFTWARE, TOOLS, AND SERVICES IF YOU DO NOT AGREE WITH THESE TOS.
The following terms have the meanings specified below.
“Affiliate” means any entity that directly or indirectly is in control of, is controlled by, or is under common control with a Party, where “control” means having more than 50% ownership or the right to direct the management of the entity.
“Authorized User” means Subscriber’s authorized employees, consultants, contractors, agents, and any other individuals who are authorized by Subscriber to access and use the Journey Platform.
“Business Day” means Monday through Friday, excluding public and Journey designated holidays.
“Content” means information, data, and other content, in any form or medium, that is submitted, published, posted, or otherwise provided by or on behalf of Subscriber, Subscriber’s Authorized Users, or Subscriber Customers to be transmitted through the Journey Platform.
“Documentation” means Journey’s user guides and documentation relating to the Journey Platform that Journey makes generally available to subscribers through the Website for use with the Journey Platform. The Documentation is updated from time to time by Journey.
“Initial Term” means the initial subscription term for access to and use of the Journey Platform as specified in an Order Form. The Initial Term shall begin on the date set forth in the applicable Order Form.
“Order Form” means a Journey designated order form pursuant to which Subscriber purchases, or a Journey reseller purchases on behalf of a Subscriber, a subscription to the Journey Platform. A statement of work (“SOW”) agreed upon by the Parties is an Order Form.
“Journey Platform” means Journey’s designated and managed servers, software and proprietary technology, including Journey’s designated modules, tools, services, data, capabilities, and features that are included in and form Journey’s Trusted Identity Platform, and the associated software, tools, and services provided in conjunction with Journey’s Trusted Identity Platform. The Journey Platform operates within Journey’s Zero Knowledge Network cloud infrastructure. The Journey Platform does not include professional services or Third Party Products.
“Renewal Term” means successive twelve (12) month period(s) beginning on the date that a subscription order would otherwise expire at the end of the Initial Term (or any other Renewal Term). Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
“Subscriber Customer” means a customer, caller or other individual that interacts with Subscriber and/or its Authorized Users through any channel of communication and who provides information through the Journey Platform in order to verify their identity, authenticate the Subscriber Customer, or otherwise perform secure transactions utilizing Journey’s Zero Knowledge network and the Journey Platform.
“Subscription Fee(s)” mean the Journey Platform access, use and other associated fees payable by Subscriber (or in the case of purchases made through a Journey reseller, payable by the reseller) to Journey as identified on an Order Form.
“Third-Party Products” means software, software-as-a-service, data sources, or other products or services from third parties that are integrated with the Journey Platform. In the event that any of the foregoing are provided by Journey (e.g. as a channel partner of the supplier, manufacturer, or provider), in order to be considered a Third-Party Product, it will be identified as such and the applicable license, access, use, and other terms will be identified by Journey in the Order Form or otherwise subject to Subscriber’s agreement.
“Website” means Journey’s website, including the publicly accessible and controlled access portions of the Website. Journey makes available to its subscribers and partners Documentation, support resources, and other information through its Website accessed at www.journeyid.com.
2. ACCESS, USE AND RESTRICTIONS.
2.1 Ordering Specifics: Subscriber may subscribe for a license to access and use the Journey Platform under an Order Form. Order Forms are subject to acceptance by Journey. Accepted Order Forms will be governed by these TOS. All other terms and conditions contained in any Subscriber purchase order or other document not expressly referenced in these TOS will have no effect. In the event of any inconsistency or conflict between these TOS and an Order Form, the terms of the Order Form shall prevail.
2.2 Changes to these TOS. Subscriber’s use of and access to the Journey Platform is governed by these TOS which are posted at https://journeyid.com/terms-of-service-agreement/ or such successor site as designated by Journey. Journey may modify these TOS at any time in its sole discretion by posting updates to these TOS at the designated site. Modifications to these TOS may be required, for example, to address changes to laws applicable to the Journey Platform, modifications to the Journey Platform, and obligations imposed by suppliers and licensors. Unless otherwise noted by Journey, material changes to these TOS will become effective 30 days after they are posted, except to the extent the changes apply to new functionality or are required by applicable law, in which case they will be effective immediately. Subscriber’s continued access and use of the Journey Platform means that Subscriber accepts and agrees to any such modifications. It is Subscriber’s responsibility to check for updates to these TOS. In the event that Subscriber does not agree to a modification to these TOS that has a material adverse impact on Subscriber’s use of and access to the Journey Platform, Subscriber’s sole and exclusive remedy is to provide Journey with written notice, within thirty (30) days after the posting of such modified TOS, of its intent, based on the modifications to the TOS, to terminate its subscription and all use and access to the Journey Platform. In the event Subscriber so notifies Journey, the Parties shall in good faith seek to resolve any disagreement with respect to the updated TOS and if they are unable to do so within fifteen (15) Business Days of such notice, these TOS and Subscriber’s subscription to the Journey Platform shall terminate, and Subscriber shall cease use of and access to the Journey Platform, effective as of the last day of the billing period during which Subscriber notified Journey of its intent to terminate.
2.3 Access. If Subscriber purchases a subscription to the Journey Platform, then subject to the terms and conditions contained in these TOS, during the Term (i) Journey will make the Journey Platform available to Subscriber, its Authorized Users, and Subscriber Customers for Subscriber’s internal business purposes, and (ii) if as specified in the applicable Order Form any of the software components that comprise the Journey Platform are to be installed within Customer’s network environment, Journey grants to Subscriber a non-exclusive, non-transferable, limited-term license to install and use the Journey software designated in the Order Form in Subscriber’s network environment for the sole purpose of use of and access to the Journey Platform. Subscriber’s rights to access and use the Journey Platform are limited to those expressly granted in these TOS. No other rights with respect to the Journey Platform, including associated software, tools and services, or any related Journey intellectual property are implied.
2.4 Third-Party Products. Journey may from time to time make Third-Party Products available to Subscriber. For purposes of these TOS, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in the Order Form. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Products, then Subscriber should not purchase, license, install or use such Third-Party Products. In the event that Subscriber chooses to deploy certain software components that comprise the Journey Platform within Customer’s network environment, Subscriber acknowledges that such software may contain certain publicly available third party open source (“Third-Party Open Source”). In addition to the terms of these TOS, Third-Party Open Source is subject to the relevant third party license, including the relevant proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the Third-Party Open Source. To the extent the terms of open source licenses applicable to Third-Party Open Source prohibit any of the restrictions in these TOS, such restrictions will not apply to such Third-Party Open Source.
2.5 Restrictions. Except as otherwise expressly permitted under these TOS, Subscriber will not (and will not authorize, permit, or encourage any third party to): (i) use the Journey Platform or any portion thereof beyond the restrictions or limitations in these TOS, including the Order Form; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Journey Platform, except and only to the extent any foregoing restriction is prohibited by applicable law; (iii) modify, adapt, copy or translate the Journey Platform; (iv) resell, distribute, sublicense, rent, lease, transfer, or sell access to the Journey Platform without Journey’s prior written permission in each instance, which Journey may withhold in its sole and absolute discretion; (v) remove or modify any proprietary marking or restrictive legends placed on the Journey Platform; (vi) knowingly or negligently use the Journey Platform in a way that abuses, interferes with, or disrupts Journey’s networks, services or accounts; (vii) use the Journey Platform in violation of Journey policy or in a manner that violates any applicable law or regulation; (viii) use the Journey Platform in order to build or benchmark a competitive platform, software, product or service, or copy any features, functions or graphics of the Journey Platform; (ix) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Journey Platform or any portion thereof without the prior written approval of Journey; (x) use the Journey Platform where failure or fault of the Journey Platform could lead to death or serious bodily injury of any person, or to severe physical, property or environmental damage (including in hazardous environments requiring fail-safe controls such as operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, life support, weapons systems, E-911); or (xi) for any purpose not specifically permitted in these TOS. For the avoidance of doubt, all restrictions specified in these TOS with respect to the Journey Platform apply to all components (including all software and Documentation). There are no implied licenses granted by Journey under these TOS.
3. SUBSCRIBER OBLIGATIONS.
3.1 System Requirements. Use of the Journey Platform requires one or more compatible devices, Internet access (high speed recommended), and certain third-party software and services necessary for Subscriber and its Authorized Users to access and use the Journey Platform and may require obtaining updates or upgrades from time to time. Subscriber’s ability to use the Journey Platform may be affected by the performance of these factors. Subscriber acknowledges and agrees that such system requirements, which may change from time to time, and any fees associated therewith, are Subscriber’s responsibility.
3.2 Account Use. In connection with Subscriber’s subscription to the Journey Platform, Subscriber may authorize Authorized Users to access and use the Journey Platform in accordance with the usage limitations set forth in the applicable Order Form. Subscriber is responsible for all uses of the Journey Platform resulting from access provided by Subscriber, directly or indirectly, whether such access or use is permitted by or in violation of these TOS. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of its Authorized Users and their compliance with these TOS. Any act or omission by an Authorized User that would constitute a breach of these TOS if taken by Subscriber will be deemed a breach of these TOS by Subscriber. Subscriber shall use reasonable efforts to make all Authorized Users aware of these TOS provisions as applicable to such Authorized User’s use of the Journey Platform and shall cause Authorized Users to comply with these TOS. Subscriber is solely responsible for the confidentiality and use of the Authorized Users’ login credentials. Subscriber will promptly inform Journey of any need to deactivate an Authorized User or change any login credential information. Journey reserves the right to delete or change Authorized Users’ login credentials at any time and for any reason. Journey will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account.
3.3 Compliance. Subscriber will ensure that: (i) its and its Authorized Users’ use and access to the Journey Platform complies with these TOS and applicable laws, including data privacy and security requirements; (ii) it either owns all right, title, and interest in and to the Content or has obtained all rights and licenses necessary to use the Content in association with the Journey Platform and has the right to grant Journey the licenses to the Content as provided in these TOS; and (iii) it has obtained, prior to any use or access to the Journey Platform, any consents and provided any notices, including to Subscriber Customers, required to permit Subscriber’s use of and access to the Journey Platform.
4. SERVICE AND SUPPORT; PLATFORM CHANGES; UNAVAILABILITY.
4.1 Service and Support. During the Term of a subscription to the Journey Platform under these TOS, Journey will make available Journey Support for the Journey Platform in accordance with its then current Support terms available at https://journeyid.com/journey-support-engagement/ or such other URL as Journey may designate.
4.2 Platform Changes. Journey may, at its sole discretion, modify the features, or functionality of the Journey Platform from time to time, or discontinue, in part or it its entirety, the Journey Platform, without prior notice. Journey will inform Subscriber if Journey makes a material change to the Journey Platform, including associated software, tools, and services, if such change has a material adverse impact on Subscriber’s use of the Journey Platform. Such notification will be provided via posting on the Website or via email provided that Subscriber has subscribed to be informed about such change.
4.3 Unavailability. The Journey Platform will be made available by Journey subject to any unavailability caused by: (a) circumstances beyond Journey’s reasonable control, including any force majeure events as contemplated in Section 13.4; (b) or any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power, other systems or services not within Journey’s possession or reasonable control; (c) denial of service attacks; or (d) Third Party Products. The Platform may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. Journey shall attempt to notify Subscriber of scheduled and unscheduled network outages that are expected to last more than four (4) hours, such notices to be published at www.journeyid.com.
5. FEES AND PAYMENT.
5.1 Fees. If Subscriber purchases a subscription to the Journey Platform via a Journey authorized reseller, applicable fee arrangements for such subscription are as agreed between Subscriber and the authorized reseller. If Subscriber purchases a subscription to the Journey Platform directly from Journey, Subscriber shall pay Journey all applicable Fees, including without limitation subscription fees, one-time set up fees, and reimbursable expenses, as set forth on and in accordance with these TOS and the Order Form and without deduction or set-off. Unless otherwise expressly provided in these TOS or in an Order Form, all Fees are non-cancelable and non-refundable. Subscription Fees will be invoiced upon acceptance of the applicable Order Form. Unless otherwise provided in the applicable Order Form, all Fees and payments due hereunder are in U.S. dollars and will be due within 30 days after the date of Subscriber’s receipt of each invoice. If Subscriber wishes to dispute an invoice, it must provide written notice to Journey with details of the disputed amount and bases for the dispute, within 30 days after the date of Subscriber’s receipt of the invoice. If Subscriber is in default of making any payment due to Journey, then Journey may, without prejudice to other remedies available, assess a late payment charge, at the lower rate of 1.5% per month, or the maximum rate under applicable law, and/or suspend access to the Journey Platform, and such failure to pay will be considered a material breach of these TOS. If at any time Journey suspends or disables access to the Journey Platform (as applicable) for non-payment, Journey may charge a reactivation fee to reinstate the Subscriber.
5.2 Taxes. The Fees are exclusive of applicable taxes and duties, such as VAT and applicable sales tax (collectively “Taxes”) which are the responsibility of Subscriber. Upon making a determination that any Taxes apply, Journey will invoice Subscriber for such Taxes and remit any payments made on any such invoice directly to the appropriate taxing authorities; provided that any failure by Journey to include such Taxes on an invoice shall not relieve Subscriber of responsibility for any such applicable Taxes. Subscriber shall promptly reimburse Journey for any and all Taxes that Journey is required to pay in connection with these TOS or Journey’s performance hereunder. Nothing in these TOS requires either Party to pay any income taxes or similar charges of the other Party.
6. TERM, TERMINATION, AND SUSPENSION.
6.1 Term. These TOS shall be effective as of the earlier of the date accepted by Subscriber, Subscriber’s first use of or access to the Journey Platform, or commencement of the Initial Term of Subscriber’s subscription to the Journey Platform (the “Effective Date”) and shall continue in full force and effect until terminated in accordance with the terms of these TOS. Either Party may terminate these TOS upon written notice to the other Party if there is no Order Form currently in effect as of the date of such termination. Each Order Form will terminate upon expiration of the Term of the applicable subscription, unless expressly stated otherwise in the Order Form or in these TOS.
6.2 Termination of an Order Form. Unless otherwise specified in the applicable Order Form, after the Initial Term, a subscription for access to and use of the Journey Platform shall automatically renew for successive Renewal Terms at then-current rates, unless either Party provides a written notice of non-renewal not less than sixty (60) days prior to the expiration or termination of the then current Term. Subscriptions purchased through an authorized Journey reseller shall be subject to the renewal terms agreed between Subscriber and the reseller unless otherwise agreed between Subscriber and Journey.
6.3 Termination for Cause. If either Party commits a material breach of its obligations under these TOS, or under an applicable Order Form, the other Party may terminate these TOS or the affected Order Form (as applicable), by providing the other Party with thirty (30) days’ prior notice detailing such breach and an opportunity to cure the breach within such thirty (30) day period. If Journey terminates under this provision, then in addition to any other rights Journey may have, Subscriber will be responsible for all subscription fees for the Journey Platform for the remainder of the applicable Term.
6.4 Effect of Termination. Upon termination of these TOS: (i) all rights granted hereunder to Subscriber and Subscriber’s Authorized Users will immediately cease, and Subscriber and Subscriber’s Authorized Users will immediately cease all access to and use of the non-public portions of the Website, the Journey Platform and Documentation; and (ii) Subscriber will promptly pay all unpaid Fees and Taxes due through the end of the Term. Any terms or sections which by their nature should reasonably survive will survive the termination or expiration of these TOS or an Order Form.
7. DATA PROTECTION.
7.1 Content. Journey assumes no responsibility or liability for Content. Content will be submitted to the Journey Platform in encrypted form. Subscriber will not provide Journey with access to decryption keys, and Journey will have no liability in the event that Subscriber provides such access to Journey.
7.2 License to Content. Subject to these TOS, Subscriber hereby grants to Journey during the Term a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to Journey (such as hosting providers), to use, reproduce, transport, store, archive, aggregate, combine with other data, perform, display, and distribute the Content submitted by Subscriber, its Authorized Users, and Subscriber Customers utilizing the Journey Platform to Subscriber and third party verifiers in order to provide the Journey Platform, including without limitation, the associated software and services.
7.4 Usage and Aggregated Data. Journey may monitor the performance and use of the Website and the Journey Platform by its subscribers and customers and collect data regarding such performance and use (“Usage Data”). Journey may use Usage Data to develop, improve, support, and operate the Journey Platform and related products and services during and after the term of these TOS and to verify Subscriber’s usage in compliance with these TOS. Journey may not share any Usage Data with a third party except: i) if such Usage Data includes Confidential Information of Subscriber, in accordance with Section 9 (Confidentiality) of these TOS; and (ii) to the extent Usage Data is aggregated and anonymized such that Subscriber, its Authorized Users, and Subscriber Customers cannot reasonably be identified. Journey may combine performance and use data from its subscribers and use such combined data to create and derive aggregated and/or anonymized data that does not identify Subscriber, its Authorized Users, or Subscriber Customers (“Aggregated Data”). Journey may collect, use, and publish such Aggregated Data for the purpose of creating aggregated and anonymized statistics regarding Journey’s customer base, for benchmarking purposes, improving the Journey Platform, and for sharing it with Journey’s prospective customers and business partners.
8. INTELLECTUAL PROPERTY.
8.1 Feedback. Notwithstanding anything to the contrary herein, Journey may freely use and incorporate into Journey’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Subscriber or by any Authorized Users relating to Journey’s products or services (“Feedback”). All Feedback is provided without warranties.
8.2 Journey Technology. All right, title, and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Website, the Documentation, the Journey Platform, Usage Data and Aggregated Data, and any and all related and underlying technology and documentation; and any derivative works, modifications, improvements, adaptations, enhancements, or translations of any of the foregoing, including any Feedback that may be incorporated (“Journey Technology”), shall be and remain Journey’s and/or Journey’s suppliers’ exclusive property. Except for the express limited rights set forth in these TOS, no right, title, or interest in any Journey Technology is granted to Subscriber, its Authorized Users, or Subscriber Customers.
9.1 Definition of Confidential Information. “Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one Party (“Disclosing Party”), either directly or indirectly through third parties, to the other party (“Receiving Party”) where the information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where the information should, by its nature, be reasonably considered to be confidential and/or proprietary. The Parties agree that without limiting the foregoing, the Journey Platform (and any performance data, benchmark results, and technical information relating thereto), the Website, the Documentation, and Journey’s pricing information will be deemed the Confidential Information of Journey. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes publicly available without fault of the Receiving Party; (b) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party; or (d) is rightfully obtained by the Receiving Party from a third party without restrictions on use or disclosure.
9.2 Confidentiality Obligations. At all times, the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party, using no less care than that with which it protects and preserves its own confidential and proprietary information of a similar nature (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under these TOS. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of these TOS by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement (to the extent legally permitted) and reasonable assistance should the Disclosing Party seek a protective order or other appropriate remedy to limit disclosure of the Confidential Information. Such compelled disclosure shall not be a violation of these terms governing protection of Confidential Information, and any information so disclosed will continue to be protected as Confidential Information for all other purposes.
9.3 Return or Destruction. Upon termination of these TOS, or upon a Party’s written request, the Parties shall cease all use of the other Party’s Confidential Information and shall at the other Party’s written request, either promptly return, or destroy, all Confidential Information, including any copies, in tangible form or in an erasable storage medium in that Party’s possession or under its control; provided that Journey may retain copies of its work product hereunder containing Company’s Confidential Information for archival purposes subject to the terms of this Section 9.
9.4 Ownership and License. Each Party shall retain all right, title and interest to such Party’s Confidential Information. No license under any trademark, patent or copyright, or application for same which is in existence as of the Effective Date or thereafter, is either granted or implied by the disclosure of Confidential Information.
10. WARRANTIES; DISCLAIMERS AND INDEMNITY.
10.1 Mutual Warranties. Each Party represents and warrants that it has the full power and authority to enter into these TOS, and that these TOS constitute a legal, valid and binding obligation of the Party, enforeceable against it.
10.2 Disclaimer. SUBSCRIBER ACKNOWLEDGES THAT ALTHOUGH THE WEBSITE AND THE JOURNEY PLATFORM MAY BE USED AS AIDS TO SUBSCRIBER TO MAKE INFORMED BUSINESS DECISIONS, USE OF THE JOURNEY PLATFORM, OR ANY DETERMINATIONS THEREFROM, ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL OR BUSINESS ADVICE OR SUBSCRIBER’S EXERCISE OF ITS OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT SUBSCRIBER’S SOLE DISCRETION AND ELECTION. EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TOS, THE WEBSITE, THE JOURNEY PLATFORM, THE DOCUMENTATION, AND ANY OTHER SERVICES AND MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND JOURNEY DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TOS. JOURNEY DOES NOT MAKE AND EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPLETENESS, ACCURACY, ACCESS, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED USE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (b) ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE JOURNEY PLATFORM. FOR AVOIDANCE OF DOUBT, ALL THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY FROM JOURNEY. TO THE EXTENT THAT JOURNEY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. LIMITATION OF LIABILITY.
11.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 11.3 (EXCLUDED CLAIMS), IN NO EVENT WILL JOURNEY AND ITS AFFILIATES AND LICENSORS AND SUPPLIERS, OR SUBSCRIBER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, STATUTORY, PUNITIVE, OR RELIANCE DAMAGES OF ANY KIND OR FOR ANY LOST REVENUES, LOST PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF ANTICIPATED SALES OR SAVINGS, COST OF COVER, SUBSTITUTE GOODS OR PERFORMANCE, LOSS OR CORRUPTION OF DATA, OR INTERRUPTED OR LOSS OF BUSINESS, ARISING FROM OR RELATING TO THESE TOS, OR THE JOURNEY PLATFORM, WEBSITE, DOCUMENTATION, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF AND REGARLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY.
11.2 Limitation on Amount of Liability. SUBJECT TO SECTION 11.3 (EXCLUDED CLAIMS), IN NO EVENT WILL THE AGGREGATE LIABILITY OF JOURNEY, ITS AFFILIATES, LICENSORS AND SUPPLIERS COLLECTIVELY FOR ALL CLAIMS ARISING OUT OF THESE TOS, THE JOURNEY PLATFORM, WEBSITE, DOCUMENTATION, OR OTHER PRODUCTS OR SERVICES PROVIDED UNDER THESE TOS, EXCEED THE FEES PAID TO JOURNEY UNDER THESE TOS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE LAST EVENT GIVING RISE TO THE CLAIM.
11.3 Excluded Claims. The limitations set forth in Section 11.1 and 11.2 above do not apply to any of the following (“Excluded Claims”):
11.3.1 Claims for which indemnification is owed as set forth in Section 12 (Indemnification) (but only to the extent of those indemnification obligations;
11.3.2 Claims for Subscriber’s breach of the access, use and compliance terms and restrictions as set forth in Section 2 (Access, Use, and Restrictions) and Section 3 (Subscriber Obligations);
11.3.3 Payment obligations under these TOS;
11.3.4 Matters for which liability cannot be limited or excluded under applicable law, such as for fraud or willful misconduct.
11.4 Applicability. THE PARTIES AGREE THAT THIS SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TOS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS LIMITS OR EXCLUDES LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
12.1 Journey’s Defense and Indemnification Obligations. Journey will defend Subscriber against third party claims brought against Subscriber to the extent arising from an allegation that the Journey Platform, when used in accordance with these TOS, infringes a third-party patent or copyright. Journey will indemnify Subscriber against damages and costs (specifically excluding any increased or enhanced damages resulting from Subscriber’s willful infringement) finally awarded against Subscriber by a court of competent jurisdiction or agreed upon in a settlement approved by Journey resulting from such a claim. Journey’s obligations under this Section will not apply if the claim arises or results from (a) Subscriber’s breach of these TOS or any use of the Journey Platform outside the scope of these TOS, (b) modification to the Journey Platform not made by Journey or its contractors; (c) combination, operation, or use of the Journey Platform with, or damages based on the value of, products, software, data, services or business processes not provided by Journey, (d) Third Party Products and non-Journey branded services, (e) Journey’s compliance with any designs, specifications, requirements or instructions provided by Subscriber or a third party on Subscriber’s behalf, (f) use of non-current or unsupported versions of the Journey Platform (including failure to install Updates) or use of the Journey Platform after Journey notifies Subscriber to stop use due to a third party claim; (g) Content, Subscriber data, or any other content or data not provided by Journey, (h) open source and freeware software, or (i) any services, products, software, or business processes Subscriber provides based on or related to the Journey Platform. In the event a claim is made or likely to be made, Journey may, at Journey’s option and discretion, (i) procure for Subscriber the right to continue using the Journey Platform under the terms of these TOS, or (ii) replace or modify the Journey Platform to be non-infringing without material decrease in functionality. If these options are not commercially reasonably available, at Journey’s discretion, Journey may terminate the subscription to the Journey Platform upon written notice to Subscriber and refund Subscriber any advanced payments attributable to the remaining Term of the subscription to the Journey Platform.
12.2 Subscriber’s Defense and Indemnification Obligations. Subscriber will defend and indemnify Journey and its Affiliates, and their respective officers, directors, employees, contactors, suppliers, licensors, partners and agents (each, a “Journey Indemnified Party”) against third party claims brought against a Journey Indemnified Party arising from (a) Subscriber’s breach of these TOS; (b) Subscriber’s violation of applicable law; (c) Content or Subscriber data (including personal data), or the combination of Content or Subscriber data with other applications, content, or processes (including, but not limited to any claim involving infringement or misappropriation of third party rights); (d) Subscriber’s use of the Journey Platform, Website, or Documentation, (e) a dispute between Subscriber and any client, verifier, or dispute between Subscriber and any third party with whom Subscriber uses the Journey Platform to interact including Subscriber Customers, or (f) Subscriber’s, or its employees’ or agents’, or Authorized Users’ negligence or willful misconduct. Subscriber will defend and indemnity the applicable Journey Indemnified Party against all damages and costs finally awarded against the Journey Indemnified Party by a court of competent jurisdiction or agreed upon in a settlement approved by Subscriber resulting from such a claim.
12.3 Indemnification Procedures. The Party against whom a third party claim is brought will: (a) timely notify the other Party in writing of the claim (provided, that the failure to provide timely notice shall not relieve the indemnifying party of its obligations under this Section 12 unless the indemnifying party’s defense of such claim is materially prejudiced by such failure); and (b) reasonably cooperate in the defense of the claim and may participate in the defense of the claim at its own expense. The Party that is obligated to defend a claim will have the right to fully control the defense and to settle the claim; provided, however, that any settlement of a claim shall not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
12.4 Sole Remedy. THE FOREGOING STATES THE INDEMNIFYING PARTY’S ENTIRE LIABILITY, AND THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIMS BROUGHT BY THIRD PARTIES. THE FOREGOING ALSO IS IN LIEU OF, AND JOURNEY DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE JOURNEY PLATFORM AND ANY OTHER JOURNEY INTELLECTUAL PROPERTY.
13.1 Independent Contractor. The Parties are independent contractors. These TOS do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
13.2 Language. These TOS are in the English language. Versions in any other language will be for accommodation only, and only the English language version will be binding upon the Parties hereto.
13.3 Export Restrictions. Subscriber acknowledges that the Journey Platform, or portions thereof, may be subject to the export control laws of the United States. Subscriber will not export, re-export, divert, transfer, or disclose any portion of the Journey Platform, Journey Technology, or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
13.4 Force Majeure. Except for payment obligations, neither Party will be responsible for failure of performance due to causes beyond its reasonable control. Such causes include (without limitation) accidents, severe weather events, acts of God, labor disputes, actions of any government agency, epidemic, pandemic, shortage of materials, acts of terrorism, unavailability of third-party hosting services, or the stability or availability of the Internet or connectivity outside of the control of a Party.
13.5 Injunctive Relief and Cumulative Remedies. Nothing in these TOS will be construed to preclude either Party from seeking provisional and equitable remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction to protect its rights. Except as otherwise expressly provided in these TOS, any and all of the rights and remedies specified herein are cumulative and not exclusive of any other right or remedy conferred by these TOS or by law or equity, and the exercise of any one remedy will not preclude the exercise of any other.
13.6 Affiliates. Subject to Journey’s prior written approval, any Subscriber Affiliate may make a purchase hereunder, provided that the Affiliate agrees to be bound by the terms and conditions of these TOS and any Affiliate incorporates these TOS by reference into their order. Subscriber shall remain jointly liable for the performance of its Affiliates’ hereunder.
13.7 Notices. All notices to be made or given pursuant to these TOS must be in writing in the English language and addressed to the Parties at the addresses designated by each respective Party from time to time in accordance with this Section. In the case of Journey, notices are to be given to Journey at the address set forth on the first page of these TOS unless Journey provides written notice of an updated address. In the case of Subscriber, notices are to be given to Subscriber at the Subscriber address included in the Order Form. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email with confirmation of transmission, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these TOS, a notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the notice has complied with the requirements of this Section.
13.8 Assignment. Journey may assign these TOS (or any of its rights and obligations under these TOS): a) to any of its Affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction. Any other assignment of these TOS (and any Order Form) or any rights or obligations under these TOS without the express written consent of the other Party (not to be unreasonably withheld) will be invalid. Notwithstanding the foregoing, Journey may subcontract obligations under these TOS provided that Journey will retain responsibility for the work of its subcontractors.
13.9 Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, these TOS will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision in the future. In the event that a provision of these TOS is held invalid by a court of competent jurisdiction, the remaining provisions shall nonetheless be enforced in accordance with their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended.
13.10 U.S. Government End User Purchasers. Software provided by Journey to use the Journey Platform, if any, and associated documentation are “commercial items,” as defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and Defense Federal Acquisition Regulation Supplement (“DFAR”) 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which these TOS may be incorporated, Government end users will acquire, such software and associated documentation with only those rights set forth in these TOS. Any license provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
13.11 Governing Law. These TOS shall be governed by and construed in accordance with the laws of the state of New York without regard to its conflict of law principles and expressly excludes the United Nations Convention on the International Sale of Goods. All proceedings related to these TOS shall be conducted in English. Unless otherwise agreed to by the Parties in writing, the Parties hereto agree that the state courts of New York and federal courts of New York shall be the proper, and exclusive, forums for any legal controversy arising in connection with these TOS, and the Parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of such courts for such purposes.
13.12 Entire Agreement. These TOS constitute the entire agreement between the Parties and supersedes any and all prior and contemporaneous oral or written understandings between the Parties relating to the subject matter hereof. Subscriber agrees that its subscription, access to or use of the Journey Platform is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Journey with respect to future functionality or features.