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Global Terms and Conditions
THESE GLOBAL TERMS AND CONDITIONS (“AGREEMENT”) GOVERN YOUR USE OF
ONE OR MORE JUNGO APPLICATIONS, JUNGO CONTENT, JUNGO SERVICES, OR
THIRD PARTY APPLICATIONS PROVIDED TO YOU BY JUNGO, INC. (“PRODUCTS
AND SERVICES”). YOUR ACCEPTANCE OF THIS AGREEMENT IS EVIDENCED BY
ANY OF YOUR SIGNATURE, CLICK “ACCEPT” OR USE OF THE PRODUCTS AND
SERVICES AS INDICATED IN AN APPLICABLE CONTRACT WITH JUNGO. IF YOU
ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER
LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND
SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN
WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND
ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT
AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS
AGREEMENT AND MAY NOT USE THE PRODUCTS AND SERVICES.
You may not access the Services if You are Jungo’s direct competitor, except with Jungo’s prior
written consent. In addition, You may not access the Services for purposes of monitoring their
availability, performance or functionality, or for any other benchmarking or competitive
purposes.
1. DEFINITIONS
“Affiliate” means any entity, which directly or indirectly controls, is controlled by, or is under
common control with the subject entity. “Control,” for purposes of this definition, means direct
or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Contract” means the ordering document for purchases hereunder, including addenda thereto,
that are signed or electronically accepted by You and Jungo from time to time. Contracts
together with this Agreement shall constitute the terms and conditions that govern your use and
access to Products and Services.
“Intellectual Property Rights” mean all copyrights (including, without limitation, the exclusive
right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare
derivative works thereof), copyright registrations and applications, Trademark rights (including,
without limitation, registrations and applications), patent rights (including, without limitation,
registrations and applications), trade secrets, moral rights, author's rights, rights in packaging,
goodwill, and other intellectual property rights, and all renewals, continuations (in whole or in
part), extensions, and the like thereof, regardless of whether any of such rights arise under the
laws of the United States or any other state, country or jurisdiction.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents or programs.
“Purchased Products or Services” means Products or Services that You or Your Affiliates
purchase or license under a Contract, as distinguished from those provided pursuant to a free
trial.
1.
“Jungo Application” means each online Web-based or installed software application and
platform provided to You by Jungo as clearly identified in a Contract. Examples of Jungo
Applications include, but are not limited to, The Mortgage App, The Lender App, The Marketing
Platform, The Real Estate App, The Leads App, The LOS Sync App, The Wealth Management
App.
“Jungo Content” means the text, media, video and other content (whether in tangible or digital
form) that is provided to You by Jungo as clearly identified in a Contract Form. Jungo Content
will include, for example and without limitation, Jungo libraries of marketing materials, web
sites, mobile applications, mobile device content, marketing templates, customer communication
materials and similar content. Jungo Content may be provided through use of a Jungo
Application, Third Party Applications or Jungo Services.
“Jungo Services” means Jungo Services and other services provided or managed by Jungo.
Examples of Jungo Services include, but are not limited to, implementation services, loan system
integrations, marketing support services, user training and user setup.
“Trademarks” means trademarks, trade names, service marks, brand names, corporate names,
logos, trade dress, and other words, designations, labels, symbols, designs, colors, color
combinations and product configurations, whether registered or unregistered.
“Third-Party Applications” means any network, online, or Web-based applications, software
products or other content that are provided by third parties and licensed to You by Jungo,
regardless of whether they interoperate with any Jungo Application, Jungo Content or Jungo
Services and regardless of whether they are incorporated by Jungo into a product or service that
is the subject of an Order accepted by Jungo. Third-Party Applications may include, for
example, applications or platforms offered by Google, Inc., applications offered through any
application exchange, contact management services, mail services, loan origination software, and
industry applications.
“Third Party Content” means content provided as part of Jungo Content that is sourced from one
or more third parties, such as industry libraries, forms or property listing data.
“Documentation” means Jungo’s Training Center (see help.ijungo.com) or other documentation
provided by Jungo relating to Products and Services, whether provided in tangible form,
delivered content or web link, and as updated from time to time.
“Users” means individuals who are authorized by You to use the Products or Services, for whom
subscriptions to a Service have been purchased, and who have been supplied user identifications
and passwords by You (or by Us at Your request). Users may include but are not limited to your
employees, consultants, contractors and agents; or third parties with which You transact
business.
“Jungo” means Jungo, Inc.
“You” or “Your” means the company or other legal entity for which you are accepting this
Agreement, and Affiliates of that company or entity, including your Users and representatives.
2.
“Your Data” means all electronic data or information submitted by You to the Products and
Services.
2. FREE TRIALS
If any Products or Services are provided to you as part of a free trial, Jungo will make the
selected Products and Services available to You free of charge until the earlier of (a) the stated
expiration of the trial, (b) the effectiveness of Your purchase of such Products or Services, or (c)
revocation and cancellation by Jungo. ANY DATA YOU ENTER INTO THE PRODUCTS OR
SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE PRODUCTS OR SERVICES
BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST
UNLESS YOU PURCHASE A SUBSCRIPTION TO THE PRODUCTS OR SERVICES, OR
EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANY WARRANTIES STATED IN THIS AGREEMENT, DURING
THE DAY FREE TRIAL THE PRODUCTS OR SERVICES ARE PROVIDED “AS-IS”
WITHOUT ANY WARRANTY AND JUNGO SHALL HAVE NO LIABILITY FOR ANY
DAMAGES OF ANY TYPE OR KIND IN CONNECTION WITH THE PRODUCTS OR
SERVICES PROVIDED DURING THE FREE TRIAL.
3. GRANT OF RIGHTS; RESTRICTIONS
3.1 License Grant. Subject to your payment in full for the applicable Product or
Service, Jungo hereby grants You a non-exclusive, non-transferable, worldwide right to use the
Jungo Applications, Jungo Content and Third-Party Applications, solely for Your own internal
business purposes, subject to the terms and conditions of this Agreement and solely during the
term of your paid subscription for such Jungo Applications, Jungo Content and Third-Party
Applications, as the case may be. All rights not expressly granted to you are reserved by Jungo
and its licensors.
3.2 Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign,
distribute or otherwise commercially exploit or make available to any third party the Jungo
Applications, Jungo Content or Third-Party Applications, or any modifications thereof, in any way
unless otherwise expressly permitted hereby; (ii) modify or make derivative works based upon the
Jungo Applications, Jungo Content or Third-Party Applications unless expressly permitted by
Jungo; (iii) create Internet “links” to the Jungo Applications, Jungo Content or Third-Party
Applications or copy, frame or mirror any part or content of the Jungo Applications, Jungo Content
or Third-Party Applications, other than copying or framing on Your own intranets or otherwise for
Your own internal business purposes for use during the term of your license; (iv) reverse engineer
the Jungo Applications, Jungo Content or Third-Party Applications; or (v) access the Jungo
Applications, Jungo Content or Third-Party Applications in order to (a) build a competitive
product or service, (b) build a product using similar ideas, features, functions or graphics of the
Jungo Applications, Jungo Content or Third-Party Applications, or (c) copy any ideas, features,
functions or graphics of the Jungo Applications, Jungo Content or Third-Party Applications. If a
licensed application is provided for installation on Your device, You are allowed to install the
application on an authorized device that satisfies the configuration requirements set forth by Jungo.
Notwithstanding the foregoing, if your subscription includes a license for Jungo Content for which
the purpose of the use of such content to provide a product or service to your customers, such as
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customer information documents, postcards or websites, your use of the Jungo Content shall be
limited to such purpose within the scope of your subscription. You shall not be entitled to use or
display Jungo Content other than as expressly permitted by the terms of your subscription.
3.3 Users. User licenses cannot be shared or used by more than one individual User
but may be reassigned from time to time to new Users who are replacing former Users who have
terminated employment or otherwise changed job status or function and no longer use the Products
or Services.
3.4 Third Party Licenses. If You access, use, or have subscribed for use of any Third-
Party Applications, Your access, use of, and subscription for the Third-Party Applications is also
subject to the terms, conditions and agreements provided to You by Jungo or such third-party
licensor in connection with the Third-Party Application (the “Third-Party Application Terms”)
including without limitation: (a) Your rights under this Agreement are limited by any limitations
in the Third-Party Application Terms, and (b) You are subject to and shall comply with the Third-
Party Application Terms applicable to Jungo (other than Jungo’s obligation to pay Jungo’s fees to
the licensor, except if provided otherwise in an Order Form) as if those Third-Party Application
Terms were explicitly written therein to bind You. Such terms, conditions and agreements may
be provided to You by copy or link included in the applicable Order Form.
4. PURCHASED PRODUCTS OR SERVICES
4.1 Provision of Purchased Products or Services. Jungo shall make the Purchased
Products or Services available to You pursuant to this Agreement and the relevant Order Form
during the subscription term specified in such Order Forms or such other time period or term
specified in the Order Form. You agree that Your purchases hereunder are neither contingent on
the delivery of any future functionality or features nor dependent on any oral or written public
comments made by Jungo regarding future functionality or features.
4.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i)
Products or Services are purchased as User subscriptions and may be accessed by no more than
the specified number of Users, (ii) additional User subscriptions may be added during the
subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the
remainder of the subscription term in effect at the time the additional User subscriptions are added,
and (iii) the added User subscriptions shall terminate on the same date as the pre-existing
subscriptions. User subscriptions are for designated Users and cannot be shared or used by more
than one User but may be reassigned to new Users replacing former Users who no longer require
ongoing use of the Products or Services. You may not to charge Users any fees or other
compensation for use of a subscription without Jungo’s express written consent. In the event you
violate this restriction, Jungo shall be entitled to collect from you any and all fees and
compensation you receive from Users plus interest at the rate of 1.5% per month from the time
such compensation is received.
4.3 Term of Purchased User Subscriptions; Auto-renewal. User subscriptions
purchased by You commence on the start date specified in the applicable Order Form and continue
for the subscription term specified therein. Except as otherwise specified in the applicable Order
Form, all User subscriptions shall automatically renew for additional periods equal to the expiring
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subscription term or one year (whichever is shorter), unless either party gives the other confirmed
notice of non-renewal at least 30 days before the end of the relevant subscription term. You must
send your notice of non-renewal to billing@ijungo.com for effective notice. Jungo will confirm
receipt of the notice by return email. If you do not receive a confirmation, it means your notice
was not received. Such notice may be given by email to the email address provided by each party.
The per-unit pricing during any such renewal term shall be the same as that during the prior term
unless Jungo has given You written notice of a pricing increase at least 30 days before the end of
such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
5. USE OF THE PRODUCTS OR SERVICES
5.1 Jungo’s Responsibilities. With respect to Jungo Applications and Jungo Content,
Jungo shall: (i) provide to You basic support comprised of email support and video tutorials, as
well as phone support if and when available, for standard troubleshooting with respect to the
Purchased Products or Services at no additional charge, and/or upgraded support if purchased
separately (details of the basic support and upgraded support packages are set forth at
http://www.ijungo.com), (ii) use commercially reasonable efforts to make the Jungo Products and
Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which
notice shall be given at least 8 hours prior to such planned downtime as posted when logging in to
the Products or Services and which shall be scheduled to the extent practicable during the weekend
hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any
unavailability caused by circumstances beyond Jungo’s reasonable control, including without
limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror,
strikes or other labor problems (other than those involving Jungo’s employees), or Internet service
provider failures or delays, and (iii) provide the Jungo Products or Services only in accordance
with applicable laws and government regulations.
5.2 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this
Agreement, (ii) be solely responsible for the entry, deletion, correction, accuracy, quality, integrity,
reliability, appropriateness, legality and intellectual property ownership or right to use all of Your
Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts
to prevent unauthorized access to or use of the Products or Services, and notify Jungo promptly of
any such unauthorized access or use, and (iv) use the Products or Services only in accordance with
the Documentation and applicable laws and government regulations, including those related to
data privacy, international communications and the transmission of technical or personal data. You
shall not (a) make the Products or Services available to any third party other than Users, (b) sell,
resell, rent or lease the Products or Services, (c) use the Products or Services to store or transmit
infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in
violation of third-party privacy rights, (d) use the Products or Services to store or transmit
Malicious Code, (e) interfere with or disrupt the integrity or performance of the Products or
Services or third-party data contained therein, (f) attempt to gain unauthorized access to the
Products or Services or their related systems or networks, (g) send spam or otherwise duplicative
or unsolicited messages in violation of applicable laws, or (h) utilize the Product or Services or
User Data in any way that misappropriates the trade secret rights or infringes the proprietary rights
of any person or entity, including without limitation any employer or master of Users. In addition,
You shall ensure that You and Your representatives are familiar with the parameters of subscribed
use and restrictions of the Products and Services. For example and without limitation, certain
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Products and Services may be offered with a limited number of revisions or editing turns. You
will be responsible for fees associated with additional revisions and changes. Jungo will use
commercially reasonable efforts to satisfy User requests, however, Jungo will not be responsible
for responding to excessive or unreasonable requests, and abuse of Jungo representatives will not
be tolerated.
You shall be respectful in your interactions with Jungo representatives, and You shall not abuse,
harass or otherwise cause unreasonable distress to Jungo’s employees or support representatives.
Continued abuse, harassment or disrespectful behavior following Jungo’s written request (which
may be via email) to cease such behavior may result in suspension or termination of the Services,
and You will be required to indemnify Jungo for any and all costs and damages incurred in
connection with any workplace claims resulting from the continuation of any such disrespectful,
abusive or harassing behavior. You are hereby advised that phone and video calls with with
Jungo representatives may be recorded.
Please do not delete or change any customizations provided by Jungo. Jungo cannot be
responsible for unauthorized changes made to any Products or Services. You shall be
responsible for the loss of system customizations caused by Your edits, deletions and
modifications to Jungo Products or Services or any Third Party Applications. You shall be
responsible to pay fees related to the recovery or correction or issues caused by your edits,
deletions and modification.
5.3 Data. Jungo shall not be responsible for any destruction, damage, or loss to Your
Data. Your Data shall be stored on servers owned and/or controlled by You or by providers of
Third Party Applications.
5.4 Usage Limitations. The Products or Services may be subject to other limitations,
such as, for example, limits on disk storage space, on the number of calls You are permitted to
make against Jungo’s or a third party’s application programming interface, and, for Products or
Services that enable You to provide public websites, on the number of page views by visitors to
those websites. Any such limitations are specified in the Documentation. The Products or Services
provide real-time information to enable You to monitor Your compliance with such limitations.
6. JUNGO SERVICES.
6.1 Jungo will provide Jungo Services to You as defined in the Order Form and in any
related proposal or statement of work designated for such services, which shall be deemed to be
incorporated into and constitute part of the Order Form. Jungo shall provide the Jungo Services
in accordance with the Order Form. Jungo will provide its own equipment, tools and other
materials, unless otherwise agreed upon by the parties.
6.2 The Order Form shall define the Jungo Services and any deliverables to be provided
by Jungo, and shall include relevant deadlines, fee rates and such other details as the parties deem
appropriate related to the Jungo Services.
6.3 If at any time, a party requests a change to the services defined in a Contract, then
Jungo will meet with You to discuss the proposed change and the parties shall attempt to agree
upon an addendum to the Order Form reflecting the requested change and applicable fees, if any.
6.
The addendum shall be deemed part of such Order Form upon written authorization by You and
Jungo.
6.4 You acknowledge that Your timely provision of (and Jungo’s access to) relevant
assistance, cooperation, and complete and accurate information and data is essential to the
performance of the Jungo Services, and that Jungo shall not be liable for any deficiency in
performing the Jungo Services if such deficiency results from Your failure to provide full
cooperation as required hereunder. Jungo shall have the right to suspend Jungo Services during
any period of non-payment or other material breach of this Agreement by You.
7. THIRD-PARTY PROVIDERS
7.1 Acquisition of Third-Party Products and Products or Services. Jungo may offer
Third-Party Applications for license under Order Forms. Any other acquisition or license by You
of Third-Party Applications and implementation, customization and other products or services,
and any exchange of data between You and any third-party provider, is solely between You and
the applicable third-party provider. Jungo does not warrant or support third-party applications,
products or services, whether or not they are designated by Jungo as “certified” or otherwise,
except only if specified in a Contract.
7.2 Third-Party Applications and Your Data. If You install or enable Third-Party
Applications for use with the Jungo Applications or Jungo Content, You acknowledge that Jungo
may allow providers of Third-Party Applications to access Your Data as required for the
interoperation of such Third-Party Applications with the Jungo Applications or Jungo Content.
Jungo shall not be responsible for any disclosure, modification or deletion of Your Data resulting
from any such access by Third-Party Application providers.
7.3 Third-Party Application Interoperability.
(a) Features of the Jungo Services, Jungo Applications or Jungo Content that
interoperate with a Third Party Application will depend on the continuing availability of the Third-
Party Application and related features. If a third party ceases to make the necessary API or
program available, or if applications, products or services that are sublicensed by Jungo are not
available on reasonable terms, Jungo reserves the right to cease providing such service features or
interoperability and You shall not be entitled to any refund, credit, or other compensation.
(b) You shall be responsible for obtaining and maintaining all necessary
licenses and rights from third parties, including login credentials and keys, for Third-Party
Applications in order to enable the use of data with the Products or Services and to enable the
integration and interoperation of Third-Party Application with and as part of the Products or
Services, and for compliance with the terms of use required by the third party providers. In
addition, You shall be responsible for ensuring that you have obtained rights for all necessary
functionality required for the integration and interoperation of the Third-Party Application, and
that the Third-Party Application is configured for use with the Products and Services in addition
to any other applications utilized by You. For example, if the Third-Party Application is
configured with defined or limited resources that are to be shared by the Products and Services
and any other applications, You will ensure that sufficient resources are configured and available
7.
for the operation of the Products and Services. Errors or delays caused by insufficient resources
may result in additional fees. You represent and warrant that You will have obtained all necessary
rights to enable the Products or Services to interoperate with such Third Party Applications and
that you have ensured necessary resources remain available. If you utilize Third Party
Applications to process or maintain data with Your own internal systems, You shall ensure that
there are no restrictions related to the use of such data with the Products or Services. Jungo will
have no control over Your business systems or the availability of APIs or systems related to Third-
Party Applications or over any changes to such APIs or systems. There can be no assurance that
Jungo will be able to modify integrations or applications following any third party’s system
changes or interruption. Your obligations to pay fees associated with the Products or Services
shall not be affected by any changes to a third party API or system changes, including any
unavailability of Products or Services as a result of such third party’s changes or service
interruption, or your non-compliance with any third party license terms.
(c) Jungo Content may include Third Party Content. You are responsible for
reviewing the contents of the Third Party Content and will be deemed to accept the content that
you use. Jungo is not responsible for the accuracy of the information or data contained in such
Third Party Content. Jungo makes no representations or warranties with respect to Third Party
Content.
8. FEES AND PAYMENT FOR PURCHASED PRODUCTS OR SERVICES;
EXPENSES
8.1 User Fees. You shall pay all fees specified in all Order Forms. Except as otherwise
specified herein or in a Contract, (i) fees are quoted and payable in United States dollars (ii) fees
for Jungo Applications, Jungo Content and Third-Party Applications are based on the subscribed
Products and Services and fees are not based on actual usage, (iii) payment obligations are non-
cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased
cannot be decreased during the relevant subscription term stated on the Order Form.
8.2 Expenses. You shall reimburse Jungo for all travel, lodging, materials costs and
other third party expenses incurred by Jungo in connection with providing Services. Unless
otherwise specified in written a statement of work signed by both parties, all training and on-
boarding sessions will be conducted over telephone, internet or video conferences and will not
require travel by Jungo representatives.
8.3 Invoicing and Payment. You will provide Jungo with valid and updated credit card
information, or with a valid purchase order or alternative document reasonably acceptable to
Jungo. If You provide credit card information to Jungo, You authorize Jungo to charge such credit
for all Products or Services listed in the Order Form for the initial subscription term and any
renewal subscription term(s) as set forth in Section 4.3 (Term of Purchased User Subscriptions).
Such charges shall be made in advance, either annually or in accordance with any different billing
frequency stated in the applicable Order Form. If the Order Form specifies that payment will be
by a method other than a credit card, Jungo will invoice You in advance and otherwise in
accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced
charges are due net 30 days from the invoice date. You are responsible for maintaining complete
and accurate billing and contact information in the Products or Services. If the contact information
8.
you have provided is false or fraudulent, Jungo reserves the right to terminate your access to the
Products or Services in addition to any other legal remedies.
8.4 Overdue Charges. If any payment is not received from You by the due date (except
charges then subject to reasonable and good faith dispute), then at Jungo’s discretion, (a) such
charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the
maximum rate permitted by law, whichever is lower, from the date such payment was due until
the date paid, and/or (b) Jungo may condition future subscription renewals and Order Forms on
payment terms shorter than those specified in Section 8.3 (Invoicing and Payment).
8.5 Charges 30 or More Days Overdue. If any payment owing by You under this or any
other agreement for Products or Services is overdue (except charges then under reasonable and
good faith dispute), Jungo may, without limiting Jungo’s other rights and remedies, accelerate
Your unpaid fee obligations under such agreements so that all such obligations become
immediately due and payable, and suspend the Products or Services until such amounts are paid
in full. You will continue to be charged for the Products or Services during any period of
suspension. Jungo reserves the right to impose a reconnection fee in the event You are suspended
and You thereafter request access to the Products or Services.
8.6 Taxes. Unless otherwise stated, the fees charged hereunder do not include any
taxes, levies, duties or similar governmental assessments of any nature, including but not limited
to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal
or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated
with Your purchases hereunder. If Jungo has the legal obligation to pay or collect Taxes for which
You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by
You, unless You provide Jungo with a valid tax exemption certificate authorized by the appropriate
taxing authority. For clarity, Jungo is only responsible for taxes assessable based on Jungo’s
income, property and employees.
9. PROPRIETARY RIGHTS
9.1 Ownership and Reservation of Rights. Subject to the limited rights expressly
granted hereunder, Jungo alone (and its licensors, where applicable) shall own all right, title and
interest, including all related Intellectual Property Rights, in and to the Products and Services,
deliverables and any suggestions, ideas, enhancement requests, feedback, recommendations or
other information provided by You, including Users or any other party relating to the Products or
Services. This Agreement is not a sale and does not convey to You any rights of ownership in or
related to the Products or Services, or the Intellectual Property Rights owned by Jungo. The Jungo
name, the Jungo logo, and the product names associated with the Jungo Products and Services are
trademarks of Jungo, and the product names associated with Third-Party Applications are
trademarks of the third party licensors, and no right or license is granted to use them. No rights
are granted to You hereunder other than as expressly set forth herein.
9.2 Jungo Services Deliverables. With respect to Jungo Services deliverables, You
shall have the non-exclusive right to use Jungo Intellectual Property Rights that are incorporated
into any deliverable provided by Jungo to You pursuant to any Order Form, provided that such
right that pertains to Jungo Applications, Jungo Content or Third-Party Application shall expire
9.
concurrently with the expiration of Your valid license for the related Jungo Application, Jungo
Content or Third-Party Application that is associated with the deliverable.
9.3 Ownership of Your Data. As between Jungo and You, You exclusively own all
rights, title and interest in and to all of Your Data. If Jungo reasonably believes that Your Data is
subject to ownership rights of another person or entity, Jungo shall not be liable for taking
reasonable steps to ascertain the true ownership of the Data or to preserve the integrity of the Data
for determination of ownership by a relevant authority or adjudicator.
9.4 Federal Government End Use Provisions. Jungo provides the Products or Services,
including related software and technology, for ultimate federal government end use solely in
accordance with the following: Government technical data and software rights related to the
Products or Services include only those rights customarily provided to the public as defined in this
Agreement. This customary commercial license is provided in accordance with FAR 12.211
(Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR
252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in
Commercial Computer Software or Computer Software Documentation). If a government agency
has a need for rights not conveyed under these terms, it must negotiate with Jungo to determine if
there are acceptable terms for transferring such rights, and a mutually acceptable written addendum
specifically conveying such rights must be included in any applicable contract or agreement.
10. CONFIDENTIALITY
10.1 Definition of Confidential Information. As used herein, “Confidential Information”
means all confidential information disclosed by a party (“Disclosing Party”) to the other party
(“Receiving Party”), whether orally or in writing, that is designated as confidential or that
reasonably should be understood to be confidential given the nature of the information and the
circumstances of disclosure. Your Confidential Information shall include Your Data; Jungo’s
Confidential Information shall include the pricing and other information that Jungo provides to
you related to the Products or Services (and includes all computer code and other information
related to Products and Services); and Confidential Information of each party shall include the
terms and conditions of this Agreement and all Order Forms, as well as business and marketing
plans, technology and technical information, product plans and designs, and business processes
disclosed by such party. However, Confidential Information shall not include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the
Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing
Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third
party without breach of any obligation owed to the Disclosing Party, or (iv) was independently
developed by the Receiving Party.
10.2 Protection of Confidential Information. Except as otherwise permitted in writing
by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to
protect the confidentiality of its own confidential information of like kind (but in no event less
than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party
for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access
to Confidential Information of the Disclosing Party to those of its employees, contractors and
agents who need such access for purposes consistent with this Agreement and who have signed
10.
confidentiality agreements with the Receiving Party containing protections no less stringent than
those herein.
10.3 Protection of Your Data. Jungo shall not (a) modify Your Data, (b) disclose Your
Data except as compelled by law in accordance with Section 10.4 (Compelled Disclosure) or as
expressly permitted in writing by You, (c) access Your Data except to provide the Products or
Services or prevent or address service or technical problems, or at Your request in connection with
customer support matters, or (d) disclose any personal information supplied by You for any
purpose other than the specific purpose of performing the services specified in this Agreement and
your Order Form or as otherwise permitted by the California Consumer Privacy Act. Jungo’s
disclosure of Your Data to an entity that Jungo reasonably believes is Your employer or master
and the actual owner of the Data after reasonable investigation shall not be deemed a breach of
this Section 9.
10.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information
of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the
Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and
reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the
disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s
Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and
the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the
Receiving Party for its reasonable cost of compiling and providing secure access to such
Confidential Information.
11. WARRANTIES AND DISCLAIMERS
11.1 Jungo’s Warranties.
(a) Jungo warrants that (i) the Jungo Applications shall perform materially in
accordance with the Documentation, and (ii) subject to Section 7.3 (Third-Party Application
Interoperability), the functionality of the Jungo Applications will not be materially decreased
during a subscription term. For any breach of either such warranty, Your exclusive remedy shall
be as provided in Section 14.2 (Termination for Cause) and Section 14.3 (Refund or Payment upon
Termination) below.
(b) Jungo warrants that Jungo Services shall be performed in a professional
manner by qualified personnel and in a manner consistent with industry standards, and in all
material respects in accordance with the related Documentation and Order Form. In the event of
a breach of such warranty, You shall provide Jungo with a detailed written description of such
breach within thirty (30) days from the date of performance of the nonconforming Jungo Services
(or portion thereof, if applicable) or delivery of the nonconforming deliverable, in which case
Jungo shall promptly and at its expense, use commercially reasonable efforts to correct such non-
conforming or re-perform such services (or portion thereof).
11.2 Your Warranties. You represent and warrant that you have not falsely identified
yourself nor provided any false information to gain access to the Products or Services and that
your billing information is correct. You represent and warrant that the party identified as the
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subscriber or purchaser of the Product or Service has all rights to enter into this Agreement and to
control all User Data.
11.3 Mutual Warranties. Each party represents and warrants that (i) it has the legal power
to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code
(except for Malicious Code previously transmitted to the warranting party by the other party).
11.4 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT
AND APPLICABLE ORDER FORM, JUNGO AND ITS LICENSORS MAKE NO OTHER
WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY,
SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE
PRODUCTS OR SERVICES. EXCEPT AS SPECIFIED IN THIS AGREEMENT AND
APPLICABLE ORDER FORM, JUNGO AND ITS LICENSORS DO NOT REPRESENT OR
WARRANT THAT (A) THE USE OF THE PRODUCTS OR SERVICES WILL BE SECURE,
TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH
ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PRODUCTS OR
SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED
DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE
CORRECTED, OR (E) THE PRODUCTS OR SERVICES OR THE SERVER(S) THAT MAKE
THE PRODUCTS OR SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, JUNGO MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD
PARTY APPLICATIONS OR THIRD PARTY CONTENT, INCLUDING FOR EXAMPLE
ANY WARRANTIES REGARDING SYSTEM AVAILABILTIY OR UPTIME. ALL
CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. INDEMNIFICATION
12.1 Indemnification by Jungo. Jungo shall defend You against any claim, demand, suit,
or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the
Jungo Applications, Jungo Content or Jungo Services, when used in accordance with this
Agreement and the Documentation infringes or misappropriates the intellectual property rights of
a third party, and shall indemnify You for any damages finally awarded against, and for reasonable
attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a)
promptly give Jungo written notice of the Claim (provided that such failure to promptly notify
Jungo shall not affect Your right to indemnification hereunder if such delay did not materially
prejudice the defense of such Claim); (b) give Jungo sole control of the defense and settlement of
the Claim (provided that Jungo may not settle any Claim unless the settlement unconditionally
releases You of all liability); and (c) provide to Jungo all reasonable assistance, at Jungo’s expense.
For clarity, Jungo has no obligation under this Section with respect to any Claim of infringement
or misappropriation by the any Third-Party Application. This Section 12.1 (Indemnification by
Jungo) states Jungo’s sole liability to, and Your exclusive remedy against Jungo for any type of
Claim described in this Section.
12.
12.2 Indemnification by You. You shall defend Jungo, its licensors and each such party's
parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents
against any Claim made or brought against Jungo by a third party (i) alleging that Your Data, or
Your use of the Products or Services, or the integration or interoperability of the Products or
Services with a Third Party Application requested by you, infringes the rights of, or has caused
harm to, a third party or violates applicable law, (ii) alleging that Your use of Data or restriction
of access to the Data in any way misappropriates the trade secret rights of a third party or infringes
any other proprietary rights of a third party, including without limitation any employer of Users in
connection with the change or termination of employment of You and/or any Users, (iii) alleging
violation by You of Your representations and warranties herein; or (iv) arising from the breach by
You or Your Users of this Agreement, and in each case, shall indemnify Jungo for any damages
finally awarded against, and for reasonable attorney’s fees and other costs incurred by, Jungo in
connection with any such Claim; provided, that Jungo (a) promptly gives You written notice of
the Claim (provided that such failure to promptly notify You shall not affect Jungo’s right to
indemnification hereunder if such delay did not materially prejudice the defense of such Claim);
(b) give You sole control of the defense and settlement of the Claim (provided that You may not
settle any Claim unless the settlement unconditionally release Jungo of all liability); and (c)
provide to You all reasonable assistance, at Jungo’s expense.
13. LIMITATION OF LIABILITY
13.1 Limitation of Liability. IN NO EVENT SHALL JUNGO’S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCT OR SERVICE,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE TOTAL AMOUNT PAID BY YOU FOR SUCH PRODUCT OR SERVICE IN
THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT
YOUR PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT FOR
PURCHASED PRODUCTS OR SERVICES; EXPENSES).
13.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL
JUNGO HAVE ANY LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE
DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY
OTHER THEORY OF LIABILITY, (INCLUDING LOSS OF DATA, USE OR OTHER
ECONOMIC ADVANTAGE) ARISING OUT OF YOUR USE OF THE PRODUCTS OR
SERVICES, INCLUDING BUT NOT LIMITED TO THE INABILITY TO USE ANY
PRODUCT OR SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE
PRODUCTS OR SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF JUNGO HAS BEEN
PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
14. TERM AND TERMINATION
14.1 Term of Agreement. This Agreement commences on the effective date of the Order
Form (or such earlier date of your first use of the applicable Product or Service) and continues
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until all User subscriptions granted in accordance with the applicable Order Form and this
Agreement have expired. If You elect to use the Products or Services for a free trial period and do
not purchase a subscription before the end of that period, this Agreement will terminate at the end
of the free trial period.
14.2 Termination. A party may terminate this Agreement for cause: (i) at any time upon
written notice in the event the other party has committed a material breach of this Agreement which
remains uncured thirty (30) days after written notice of such breach, or (ii) if the other party
becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of creditors. Jungo may terminate this
Agreement for any reason or no reason upon thirty (30) days advance written notice to You, and
Jungo may terminate this Agreement immediately upon written notice to You in the event of abuse
or unreasonable treatment of any Jungo employee or representative by You or any of Your
representatives; such a termination shall be deemed “for cause”. Except as stated in this paragraph,
there is no other right to terminate this Agreement.
14.3 Refund or Payment upon Termination. Upon any termination for cause by You (i.e.,
termination as a result of Jungo’s uncured material breach), Jungo shall refund You any prepaid
fees covering the remainder of the term of all subscriptions after the effective date of termination.
Except only in the event of such a termination for cause by You, all fees paid by You are non-
refundable, regardless of whether You cease using the Products or Services. Upon any termination
for cause by Jungo, You shall pay any unpaid fees covering the remainder of the term of all Order
Forms after the effective date of termination. Upon any termination for no reason by Jungo, You
will be entitled to a prorated refund of previously paid fees. In no event shall any termination
relieve You of the obligation to pay any fees payable to Jungo for the period prior to the effective
date of termination. If You are subscribed to a Third Party Application, You shall not be entitled
to any refund, credit or compensation from Jungo if the Third Party Application licensor terminates
your subscription. Any refund provided by Jungo for any reason, that is refunded based on a credit
card purchase, shall be subject to a 3% card fee that may be retained by Jungo.
14.4 Return of Your Data. If this Agreement is terminated by Jungo due to Your breach,
during the 30-day cure period described in Section 14.2(i) above You may request in writing to
have Your Data that is maintained by Jungo returned to You. If You send notice to Jungo of Your
intention not to renew this Agreement or for termination due to Jungo’s breach, prior to expiration
or termination of this Agreement, You must request in writing to have Your Data that is maintained
by Jungo returned. Pursuant to a request, Jungo will make available to You for download a file of
Your Data in comma separated value (.csv) format along with attachments in their native format.
After the date of any termination or expiration of this Agreement, Jungo shall have no obligation
to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all
of Your Data in Jungo’s systems or otherwise in Jungo’s possession or under Jungo’s control.
14.5 Surviving Provisions. Section 8 (Fees and Payment for Purchased Products or
Services or Services; Expenses), 9 (Proprietary Rights), 10 (Confidentiality), 11.4 (Disclaimer),
12 (Indemnification), 13 (Limitation of Liability), 14.3 (Refund or Payment upon Termination),
14.4 (Return of Your Data), and 15 (General Provisions) shall survive any termination or
expiration of this Agreement.
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14.6 App and Content Removal. If you have added a Jungo Application or Jungo
Content to a third party application (such as a Salesforce.com product) or have saved any Jungo
Content to your internal computers or other storage, upon termination of your subscription, you
agree to participate in a brief, web-based meeting with an Jungo representative to remove the Jungo
Application or Jungo Content from such third party service. Jungo will make reasonable attempts
to arrange an acceptable time for such web meeting prior to the effectiveness of the subscription
termination. In addition, you shall confirm your removal of Jungo Content from your systems by
any reasonable manner requested by Jungo, including for example providing a written certification
of removal in a form requested by Jungo. If there is a delay in completing the meeting for removal
despite two (2) Jungo attempts to schedule such a meeting with You, or if you fail to timely confirm
your removal of Jungo Content from your systems, You will be responsible to continue paying a
monthly subscription fee for each month (or part month) until such time that the web meeting and
Jungo Application removal are completed, and you have confirmed the removal of Jungo Content
from your systems. As an alternative to the removal of the Jungo Application or Jungo Content
from a third party service, Jungo, in its sole discretion, may allow you to use the Jungo Application
or Jungo Content with a third party service following termination of your User subscription,
provided that you comply with the applicable subscription payment obligations as specified by
Jungo (including continuing to pay Jungo subscriptions during such use with the third party
service.). You are prohibited from using the Jungo Application and Jungo Content outside of a
paid subscription term and other than as expressly authorized hereunder.
15. GENERAL PROVISIONS.
15.1 Notice. Unless expressly provided otherwise herein, all notices under this
Agreement shall be in writing and shall be given (i) by courier or other personal delivery, (ii) by
registered or certified mail at the party’s address in the Order Form or at a substitute address
designated by notice by the party concerned, or (iii) the second business day after confirmed
facsimile. Notices for change of address shall be effective only from the date of their receipt.
Notices to You shall be addressed to the system administrator designated by You for Your relevant
account, and in the case of billing-related notices, to the relevant billing contact designated by
You.
15.2 Governing Law and Jurisdiction. This Agreement shall be governed by California
law and controlling United States federal law, without regard to the choice or conflicts of law
provisions of any jurisdiction. The parties agree to submit any dispute relating to this Agreement
to the federal or state courts of competent jurisdiction in the city of San Diego, State of California,
United States of America. THE PARTIES SHALL NOT RAISE, AND HEREBY WAIVE, ANY
DEFENSES BASED UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, THE
LACK OF PERSONAL JURISDICTION, THE SUFFICIENCY OF SERVICE OF PROCESS OR
THE LIKE IN ANY SUCH ACTION OR SUIT.
15.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection
with any action or litigation in any way arising out of or related to this Agreement.
15.4 Export Compliance. Each party shall comply with the export laws and regulations
of the United States and other applicable jurisdictions in providing and using the Products or
Services. Without limiting the foregoing, (i) You represent that You are not named on any U.S.
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government list of persons or entities prohibited from receiving exports, and (ii) You shall not
permit Users to access or use Products or Services in violation of any U.S. export embargo,
prohibition or restriction.
15.5 Relationship of the Parties. The parties are independent contractors. This
Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment
relationship between the parties.
15.6 No Third-Party Beneficiaries. Except for third party licensors of Third Party
Applications as set forth in the applicable license terms for such applications, there are no third-
party beneficiaries to this Agreement.
15.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising
any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated
herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies
of a party at law or in equity.
15.8 Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so
as best to accomplish the objectives of the original provision to the fullest extent permitted by law,
and the remaining provisions of this Agreement shall remain in effect.
15.9 Attorney Fees. You shall pay on demand all of Jungo’s reasonable attorney fees
and other costs incurred by Jungo (i) to collect any fees or charges due Jungo under this Agreement
following Your breach of Section 8.3 (Invoicing and Payment) or (ii) to enforce any other
provisions of this Agreement and relevant Order Form.
15.10 Assignment. No Order Form nor this Agreement may be assigned by You without
the prior written approval of Jungo, however any Order Form and this Agreement may be assigned
without Your consent by Jungo to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a
successor by merger. Any purported assignment in violation of this section shall be void. Any
actual or proposed change in control of You that results or would result in a direct competitor of
Jungo directly or indirectly owning or controlling 50% or more of You shall entitle Jungo to
terminate this Agreement for cause immediately upon written notice. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties, their respective successors and
permitted assigns.
15.11 Entire Agreement. This Agreement, including any schedules, exhibits or
referenced license terms and any Order Forms constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and supersedes all prior communications and
agreements, representations, and understandings between them with respect to the subject matter
hereof and may not be modified or otherwise amended except by a further writing executed by an
authorized representative of both parties hereto.
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