PowerSync Commercial License and Services Agreement

This PowerSync Commercial License and Services Agreement (this “Agreement”) is by and between Journey Mobile, Inc., with address at 3700 Quebec St, Ste 100 PMB 132, Denver, CO 80207, United States (“JourneyApps”) and the Customer (also referred to herein as “you”), identified on the applicable Order Form (as defined below).  This Agreement is effective as of the date the Customer clicks the “I Accept” or similar checkbox or button associated with this Agreement, or the date set forth on the Order Form, if applicable (the “Effective Date”). JourneyApps and Customer may be referred to individually as a “Party” or together as the “Parties”.

Customer’s use of the Services (as defined below) is subject to and governed by this Agreement. JourneyApps may, at its discretion, update this Agreement at any time. Customer can access and review the most current version of this Agreement at the URL for this page or by clicking on the “Commercial License and Services Agreement” link on the PowerSync website, or as otherwise made available by JourneyApps.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.

‍THIS AGREEMENT REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13(i) CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

If you are entering into this Agreement as an individual, you represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this Agreement; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICES.

If Customer elects to deploy and host PowerSync using Customer’s own computing infrastructure, as indicated on an Order Form, the additional provisions set forth in Appendix A (Self-Hosting Terms) shall apply to Customer. If Customer elects to access PowerSync as hosted by JourneyApps (“PowerSync Cloud”), the additional provisions set forth in Appendix B (PowerSync Cloud Terms) shall apply to Customer.

The Parties hereby agree as follows:

1. DEFINITIONS.

a. “Acceptable Use Policy” means the policy that sets forth the principles, guidelines and requirements governing the use by Customer of PowerSync, available at https://www.powersync.com/legal/acceptable-use-policy.

b. “Credentials” means any User accounts, passwords and other authentication credentials or keys associated with use of PowerSync by Customer or Users.

c. “Customer Data” means all Data that any User submits, uploads, emails, transmits or otherwise makes available through the Services or to JourneyApps.

d. “Customer Facilities” means Credentials and any account, database, hardware, server, system or other facility within Customer’s custody or control.

e. “Data” means all information, data, and other materials accessible through the Services.

f. “Documentation” means the contents provided under the documentation section of the PowerSync website, or other URL as notified to the Customer in writing from time to time.

g. “Unauthorized Usage Issue” means any use of the Services by Customer or Users in violation of the terms and conditions of this Agreement or any Policy.

h. “Intellectual Property” means all rights associated with patents and inventions; copyrights, and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.

i. “Order Form” means a written ordering document or online order for the procurement of the Services.

j. “PowerSync” means JourneyApps’ PowerSync technology platform, including the PowerSync Core Offerings and the PowerSync Premium Offering, together with the format, content, look and feel, sequence and functionality thereof, and the software application development tools and source code therein, including the Updates, enhancements and modifications thereto.

k. “PowerSync Core Offerings” means PowerSync software development kits (SDKs) and other software which constitute the core features of the PowerSync technology platform, and which are made available by JourneyApps under open-source or source-available licenses.

l. “PowerSync Premium Offering” means the PowerSync subscription service for Premium PowerSync Features, consisting of (i) a license to access and use the Premium PowerSync Features and the Documentation relating thereto, and (ii) any other services as JourneyApps may decide, at its sole discretion, to incorporate into the PowerSync Premium Offering and provide to its customers from time to time.

m. “Premium PowerSync Features” means optional PowerSync features that are not part of the PowerSync Core Offerings, or are otherwise designated by JourneyApps as “Premium Features” from time to time.

n. “Professional Services” means (i) consulting services related to the use of PowerSync, and (ii) any other services agreed to between the Parties from time to time.

o. “Services” means the PowerSync Premium Offering, Support and Professional Services.

p. “Support” means the technical support for PowerSync provided to Customer’s Developer Users by JourneyApps, according to the service levels set forth in Appendix C.

q. “Third Party Offerings” means services delivered or performed by third parties independently of the Services, or other online, web-based or other business application subscription services, and any associated products provided by third parties, that interoperate with the Services.

r. “Update” means one or more minor enhancements and bug fixes (patches) to PowerSync, made generally available to customers of JourneyApps at no charge. Updates shall be deemed to be a part of PowerSync upon release.

s. “User” means any user authorized by Customer to access and use PowerSync for the purpose of either (i) integrating software applications with PowerSync as a software developer (“Developer User”), or (ii) operating a software application as an end-user, where the applicable software application utilizes the PowerSync as an underlying technology. or (ii) operating a software application as an end-user, where the applicable software application utilizes the Platform as an underlying technology (“End-User”).

2. GRANT OF RIGHTS AND RESTRICTIONS.

a. Grant of Rights. Subject to and conditioned upon Customer’s and its Users’ compliance with the terms and conditions of this Agreement (including those in an applicable Order Form and any Acceptable Use Policy), JourneyApps hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable right under each Order Form to access and use the PowerSync Premium Offering as specified in each applicable Order Form or otherwise by JourneyApps (including any limitations set forth by JourneyApps on the PowerSync website with respect to any free access to the PowerSync Premium Offering), only during the Term, in the form and through the means made available by JourneyApps under such Order Form. The Services are licensed and not sold even if for convenience JourneyApps refers to words such as sale or purchase. The PowerSync Core Offerings are separately available from JourneyApps under open-source or source-available licenses, however, the license granted by JourneyApps to Customer under this Agreement supersedes the terms of such licenses with respect to the PowerSync Premium Offering and other Services provided hereunder. Customer hereby grants JourneyApps and its service providers a royalty-free, non-exclusive license to use, process, store, transmit and reproduce Customer Data (including Usage Data) as necessary for JourneyApps to provide the Services to Customer and Users.

b. Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party (including Users) to: (i) reproduce, modify, translate, adapt or create derivative works based upon the PowerSync Premium Offering; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of any part of the PowerSync Premium Offering; (iii) access the PowerSync Premium Offering for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the PowerSync Premium Offering; (iv) use spiders, crawlers, robots, scrapers or other similar means to access the PowerSync Premium Offering, or otherwise substantially download, reproduce or archive any portion of the PowerSync Premium Offering; (v) rent, lease, lend, sell or sublicense the PowerSync Premium Offering, or otherwise provide access to the PowerSync Premium Offering to anyone who is not a User or as part of a service bureau or similar fee-for-service purpose; (vi) use the PowerSync Premium Offering to transmit code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses; or (vii) access or use the PowerSync Premium Offering in any manner that does not comply with all applicable laws and regulations.

c. Changes. Customer acknowledges and agrees that JourneyApps may improve, modify, add or remove functions or features to or from the PowerSync Premium Offering from time to time, with or without notice to Customer.

d. Third Party Offerings. JourneyApps may make Third Party Offerings available to Customer for use in connection with the Services. Customer acknowledges and agrees that any use by Customer or any User of any Third Party Offerings may be subject to a separate agreement with such third party provider, which will govern Customer’s and each User’s use of such Third Party Offerings. JourneyApps makes no warranties of any kind and assumes no liability whatsoever for Customer’s or any User’s use of (or inability to use) Third Party Offerings, which are made available by JourneyApps “AS IS”, “AS AVAILABLE” and “WITH ALL FAULTS”.

3. PROFESSIONAL SERVICES AND SUPPORT.

Subject to payment of the applicable fees and as set forth in applicable Order Forms, JourneyApps agrees to use commercially reasonable efforts to (i) provide the Professional Services, as further set forth and described on each applicable Order Form, and (ii) provide Support for PowerSync to Developer Users, as described in Appendix C. Professional Services shall not include the creation or development of any Intellectual Property for Customer by JourneyApps.

4. CUSTOMER OBLIGATIONS.

a. Technical Requirements. Customer and End Users shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Services, including computers, operating systems, web browsers and storage devices.

b. Integrations. Customer acknowledges and agrees that enabling certain Integrations in the Services will require Customer to register and create accounts with various Third Party Offerings, or to link and enable such Integrations with existing Third Party Offerings with respect to which Customer may already have an account. Customer acknowledges and agrees that it shall remain solely responsible for its and its End Users’ conduct with respect to such Integrations and any credentials, authorizations, permissions, Customer Data, or other information or actions required or permitted in connection therewith.

c. Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Services through use of Customer Facilities, Customer shall promptly give written notice to JourneyApps of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Services through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.

d. Policies. Customer must comply with and ensure its Users comply with all privacy policies, end user license agreement and other guidelines instituted by JourneyApps or its licensors or service providers, including without limitation, the Acceptable Use Policy (each, a “Policy”). In addition to this Agreement, the PowerSync Privacy Policy at https://www.powersync.com/legal/privacy-policy (“Privacy Policy”) applies to how JourneyApps may process information obtained as part of providing the Services. Customer acknowledges and agrees that by accessing or using the Services, JourneyApps may receive certain information about Customer and its Users, including personal data, as set forth in the Privacy Policy, and JourneyApps may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.

e. Cooperation. In connection with JourneyApps’ provision of the Professional Services, Customer shall perform those tasks and fulfill those responsibilities as may be specified in this Agreement, an applicable Order Form and as reasonably requested from time to time by JourneyApps (“Customer Responsibilities”). JourneyApps’ performance of the Professional Services is dependent upon Customer’s timely and effective performance of Customer Responsibilities and timely decisions and approvals by Customer. JourneyApps shall be entitled to rely on all decisions and approvals of Customer in connection with the Professional Services. Customer shall retain responsibility for its compliance with all applicable federal, state and local laws and regulations. Customer shall obtain all consents necessary from third parties required for JourneyApps to perform its obligations under this Agreement or in any Order Form issued hereunder.

5. FEES AND TAXES.

a. Fees. Customer shall pay JourneyApps the applicable fees set forth in the Order Form pursuant to the payment terms therein. Customer shall provide JourneyApps with complete and accurate billing contact information including a valid email address. JourneyApps may invoice parts of an Order Form separately or all in one invoice.

b. Payment Terms and Third Party Providers. All payments to JourneyApps are non-refundable except as otherwise expressly provided in the applicable Order Form. Customer hereby (i) acknowledges and agrees that JourneyApps uses or may use a third party payment provider in connection with its collection of fees, (ii) acknowledges and agrees that JourneyApps will not be responsible for any payments or charges as a result of Customer’s failure to provide up-to-date and accurate information to any such third party payment provider, and (iii) acknowledges and authorizes JourneyApps and its third-party payment processors to charge all fees to Customer’s chosen payment method.

c. Late Payments. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.

d. Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If JourneyApps has the legal obligation to collect any Taxes, Customer shall reimburse JourneyApps upon invoice by JourneyApps. If Customer is required by law to withhold any taxes from its payments to JourneyApps, Customer shall provide JourneyApps with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.

e. Subscriptions. If Customer is accessing the Services pursuant to a monthly, annual or other subscription (each, a “Subscription”), any termination of this Agreement prior to the end of the current billing period will take effect at the end of the current billing period. If Customer does cancel its Subscription, Customer will continue to have access to the relevant portions of the Services through the end of the billing period. Unless otherwise set forth in an Order Form, Customer must cancel its Subscription prior to 11:59 p.m. UTC on the day before the next recurring billing date in order to avoid being charged for the next billing period. If Customer does not timely cancel the Subscription, the Subscription will be renewed at the price in effect at the time of renewal or the price provided in the terms of Customer’s trial or promotion, without any additional action by Customer, and Customer authorizes JourneyApps to charge Customer’s payment method for such amounts. To cancel a Subscription, Customer may navigate to its account and follow the instructions provided therein, or reach out to JourneyApps at [email protected].

6. INTELLECTUAL PROPERTY.

a. Responsibility for Data. All Data is the sole responsibility of the party from whom such materials originated. Customer acknowledges and agrees that: (i) the Services may provide access to or rely on Data from third parties (including without limitation, via Third Party Offerings), and such third parties, and JourneyApps, are entirely responsible for such Data (including without limitation, for the nature, quality and accuracy of such Data); (ii) Customer and Users, and not JourneyApps, are entirely responsible for all Customer Data (including without limitation, for the nature, quality and accuracy of such Customer Data); and (iii) Customer and Users are solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data (if any) through or to the Services or JourneyApps. JourneyApps has no liability to Customer or any third party as a result of: (i) any unauthorized disclosure or access to Customer Facilities or Customer Data as a result of Customer’s or a User’s misuse of the Services or loss or theft of any Credentials; (ii) any deletion, destruction, damage or loss of Customer Data caused by or at the direction of Customer or a User; or (iii) Customer’s failure to maintain adequate security or virus controls in any devices used to access the Services.

b. Usage and Aggregated Data. “Aggregated Data” means Customer Data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify Customer or any User as the source of such data. Customer hereby agrees that JourneyApps may collect or generate Aggregated Data in connection with providing Customer and Users with access to the Services.

c. JourneyApps Ownership. Customer acknowledges and agrees that, as between JourneyApps and Customer, JourneyApps owns all right, title and interest (including all Intellectual Property) in and to PowerSync, Aggregated Data and the Services. Furthermore, JourneyApps owns the statistical usage data derived from the operation of PowerSync (“Usage Data”). Nothing herein will be construed as prohibiting JourneyApps from utilizing the Usage Data to optimize and improve the Services or otherwise operate JourneyApps’ business. If JourneyApps provides Usage Data to third parties, such Usage Data shall be anonymized and presented in the aggregate so that it will not disclose the identity of Customer to any third party. Nothing in this Agreement or an Order Form shall be construed to transfer to Customer, any User or any other person any ownership interest in any of the foregoing. JourneyApps reserves all rights to the foregoing that are not specifically granted to Customer in this Agreement.

d. Customer Ownership. JourneyApps acknowledges and agrees that, as between Customer and JourneyApps, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data and any results therefrom.

e. Feedback. In addition to any contributions made pursuant to any contributor license agreements applicable to any contributions by Customer or Users with respect to any PowerSync Core Offerings, if Customer or Users elect to provide or make available to JourneyApps any suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback (whether in oral, electronic or written form) related to PowerSync or the Services (“Feedback”), Customer hereby assigns, at no charge, all rights, title and interests in Feedback to JourneyApps, and agrees that JourneyApps is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require JourneyApps to comply with any additional obligations with respect to any Services that incorporates Customer’s Feedback.

f. Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Services.

g. Reservation of Rights. Each of the Parties reserves all rights not expressly granted under this Agreement.

7. TERM, SUSPENSION AND TERMINATION.

a. Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of all Order Forms (the “Term”); provided, however that all Subscriptions shall automatically renew for successive terms, unless otherwise set forth in an applicable Order Form.

b. Suspension. JourneyApps reserves the right to suspend Customer or any User’s access to the Services in the event of an Unauthorized Usage Issue. JourneyApps will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Unauthorized Usage Issue. JourneyApps further reserves the right to suspend or revoke access to the Services by any User who violates any Policy.

c. Termination. Notwithstanding anything to the contrary, either Party may terminate this Agreement or any Order Form, as applicable: (i) upon the terms set forth in the applicable Order Form; (ii) unless otherwise set forth in an Order Form, at any time upon written notice to the other Party solely with respect to any Subscription and subject to Section 5(e); (iii) upon written notice to the other Party of a material breach of this Agreement or any Order Form, as applicable, by the other Party, which breach the other Party does not cure within thirty (30) days after receipt of written notice of the breach; provided that, where the breach affects only a particular Order Form, termination will be limited to that Order Form; or (iv) in the event the other Party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such Party’s business. Notwithstanding the termination of this Agreement or any Order Form for any reason, neither Party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.

d. Events upon Termination of Order Form. Upon termination of an Order Form for any reason: (i) all rights granted by the Parties under such Order Form shall immediately terminate; (ii) Customer shall immediately cease all use of the Services made available under such Order Form; and (iii) each Party shall immediately cease all use of the other party’s Confidential Information made available under such Order Form and return or destroy all copies of such Confidential Information that are within its custody or control.

e. Events upon Termination of Agreement. Upon termination of this Agreement for any reason: (i) all rights granted by the Parties under this Agreement shall immediately terminate; (ii) Customer shall immediately cease all use of all Services; and (iii) each Party shall immediately cease all use of the other Party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.

f. Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 1 (Definitions); 5(c) (Late Payments); 5(e) (Subscriptions); 6 (Intellectual Property); 7(e) (Events Upon Termination of Agreement); 7(f) (Survival); 9 (Indemnification); 10 (Confidential Information); 11 (Disclaimers); 12 (Limitation of Liability); and 13 (General).

8. REPRESENTATIONS AND WARRANTIES.

JourneyApps and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such Party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such Party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement. Customer further represents and warrants to JourneyApps that it will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are delivered or used and Customer is not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

9. INDEMNIFICATION.

a. JourneyApps Indemnification. JourneyApps agrees that Customer shall have no liability and JourneyApps shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Claim”) asserting that Customer or Users’ use of the Services infringes the Intellectual Property of such third party; provided, however, that JourneyApps shall have no obligation to indemnify Customer from any Claim to the extent it arises from: (i) use of the Services by or on behalf of Customer in any manner that does not comply with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of the Services by or on behalf of Customer in combination with any hardware or software not provided or approved by JourneyApps; (iii) modifications to the Services made by or on behalf of Customer that are not authorized by JourneyApps; or (iv) any Customer Data (the foregoing subsections (i) through (iv), collectively, “Customer Acts”). In the event that any part of the Services becomes the subject of a Claim or JourneyApps reasonably determines that any part of the Services is likely to become the subject of a Claim, JourneyApps may, at its sole discretion: (A) procure for Customer a license as necessary for Customer to exercise the rights granted by JourneyApps under this Agreement; (B) modify or replace the infringing portion of the Services to avoid infringement; or (C) terminate the applicable Order Form and provide a pro rata refund of the fees paid by Customer to JourneyApps for the unused portion of the Term, as applicable, under such Order Form. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF JOURNEYAPPS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.

b. Customer Indemnification. Customer agrees that JourneyApps shall have no liability and Customer shall indemnify, defend and hold JourneyApps harmless against any Claim to the extent arising from: (i) Customer Acts or Customer’s breach of confidentiality; (ii) any violation of applicable laws or regulations by Customer or Users; (iii) any breach by Customer or Users of this Agreement or any agreement governing use of Third Party Offerings; and (iii) any use by Customer or Users of Customer Data, except as permitted by this Agreement or otherwise and as separate from Customer’s or Users’ use of or access to the Services.

c. Procedure. The indemnified Party shall: (i) give the indemnifying Party prompt written notice of any Claim; provided, however, that failure of the indemnified Party to give such prompt written notice shall not relieve the indemnifying Party of any obligation to indemnify pursuant to this Section, except to the extent the indemnifying Party has been prejudiced thereby; (ii) cooperate fully with the indemnifying Party, at the indemnifying Party’s expense, in the defense or settlement of any Claim; and (iii) give the indemnifying Party sole and complete control over the defense or settlement of any Claim; provided, however, that any settlement must include a complete release of the indemnified Party without requiring the indemnified Party to make any payment or bear any obligation.

10. CONFIDENTIAL INFORMATION.

a. Definition. “Confidential Information” means information identified in good faith by either Party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information shall include, with respect to JourneyApps, the terms and conditions of any applicable Order Forms, any container images (including without limitation, Docker images) relating to the Premium PowerSync Offering provided by JourneyApps, the source code (if any), Usage Data, Aggregated Data and architectural framework relating to the Premium PowerSync Offering, and, with respect to either Party, any pricing information and business plans provided by either Party.

b. Non-Disclosure. Each Party may use the Confidential Information provided by the other Party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing Party. Neither Party may disclose to a third party Confidential Information of the other Party. The receiving Party shall protect Confidential Information of the disclosing Party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than reasonable care. The foregoing obligations shall not apply to any Confidential Information that: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement by the receiving Party; (ii) was known by or in the lawful possession of the receiving Party prior to receipt from the disclosing Party; (iii) is or has been independently developed by the receiving Party without use of or reference to Confidential Information of the disclosing Party; (iv) is or has been made known or disclosed to the receiving Party by a third party without a breach of any obligation of confidentiality to the disclosing Party; or (v) is required to be disclosed by law; provided, however, that the receiving Party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing Party, to the extent permitted by law, so that the disclosing Party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, JourneyApps shall be permitted to identify Customer as a JourneyApps customer. 

11. DISCLAIMERS.

a. Disclaimer of Warranties. EXCEPT AS EXPLICITLY SET FORTH IN APPENDIX C, ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” JOURNEYAPPS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 8), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, COMPLETENESS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER OR USERS’ REQUIREMENTS.

b. No Advice or Endorsement. Customer hereby acknowledges, understands and agrees that: (i) any content or information provided on the Services are for informational purposes only; (ii) such content and information are not intended to be, and Customer and Users should not construe such content and information as, technical or other advice; (iii) Customer alone assumes the sole responsibility of evaluating the merits and risks associated with the use of or reference to any content and information provided on the Services before making any decisions based on such content and information; (vi) JourneyApps shall not be held responsible or liable for any possible claim for damages arising from any decision Customer or its Users make based on content or information made available to Customer and/or Users.

12. LIMITATION OF LIABILITY.

OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF ANY POLICY, INDEMNIFICATION OBLIGATIONS, OR BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF COVER, OR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) SUBJECT TO CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT OF FEES RECEIVED BY JOURNEYAPPS FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE, OR (II) TWO HUNDRED DOLLARS ($200).

13. GENERAL.

a. Independent Contractors. The relationship between JourneyApps and Customer established by this Agreement is solely that of independent contractors. Neither Party is in any way the partner or agent of the other, nor is either Party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other Party, without the express prior written consent of such other Party.

b. Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the Parties according to the contact information provided below, or such other contact information as either Party shall notify the other in accordance with this Section:

To JourneyApps
Attn: Legal Department
3700 Quebec St, Ste 100 PMB 132, Denver, Colorado, 80207, USA

To Customer
As set forth in the most-recent Order Form

c. Assignment. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of JourneyApps. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

d. Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

e. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict among this Agreement, an Order Form, and any Policy, the terms and conditions of each shall take precedence in the following order: this Agreement, an Order Form, and any Policy.

f. Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each Party.

g. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

h. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Delaware, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

i. Jurisdiction. This Agreement shall be deemed to have been concluded in, and shall be construed pursuant to the laws of, the State of Delaware and the United States without regard to conflict of laws provisions thereof. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be fully and finally settled by binding arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures of the JAMS/Endispute or any successor entity. The arbitration will be held in Denver County, Colorado.

j. No Waiver. The failure of either Party to require strict performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the Party against which such waiver is to be enforced.

k. Force Majeure. Neither Party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the Party invoking this provision.

l. U.S. Government Entities. This Section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in these Terms with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.

APPENDIX A: Self-Hosting Terms

(Only applicable if such deployment is indicated in an applicable Order Form)

The following provisions apply when PowerSync is run on machines (“Instances”) and persistent storage devices (“Persistent Storage”) (Instances and Persistent Storage are jointly referred to as “Resources”), under Customer’s own private cloud accounts or servers, or otherwise on Customer’s Facilities (the “Customer’s Environment”). In the event of any conflict between this Appendix A and the main body of this Agreement, this Appendix A shall control.

A1. LICENSE.

Subject to and conditioned upon Customer’s and its Users’ compliance with the terms and conditions of this Agreement (including those in an applicable Order Form and any Acceptable Use Policy), JourneyApps hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable right under each Order Form to download, deploy, install and host the PowerSync Premium Offering from within Customer’s Environment during the Term. All other terms concerning the Services shall apply. Customer acknowledges and agrees: (a) PowerSync may not work on all Resources or within Customer’s Environment now or in the future; (b) that JourneyApps does not provide support for Customer’s Environment (except pursuant to the Professional Services, as applicable) and JourneyApps shall have no liability to Customer for any damage caused to Customer’s Environment resulting from Customer’s election run PowerSync in Customer’s Environment; and (c) JourneyApps is not liable or responsible for the interoperability of PowerSync with Customer’s Environment.

A2. USAGE AND AGGREGATED DATA.

If Customer has elected to run PowerSync on the Customer’s Environment, Customer may elect to opt out of sharing Usage Data and allowing JourneyApps to collect or generate Aggregated Data by indicating such election to JourneyApps in accordance with JourneyApps’ written instructions.

A3. CUSTOMER OBLIGATIONS.

Customer shall: (a) promptly download, install, implement or otherwise configure all Updates and non-minor enhancements to PowerSync consisting of new features, functionality and/or technology, each as provided, made available or otherwise instructed by JourneyApps (collectively, “Upgrades”); (b) be responsible for installing and maintaining any and all operating systems, applications, and other components necessary for the functionality, maintenance and operability of Customer’s Environment; (c) be responsible for all maintenance, security, backup and disaster recovery in connection with Customer’s Environment; and (d) be responsible for securing all necessary ownership and/or access rights to all of Customer’s Environment and for all costs and expenses in connection therewith. Customer agrees that Upgrades shall be deemed to be a part of PowerSync or the PowerSync Premium Offering, as confirmed by JourneyApps in JourneyApps’ sole discretion, upon release. Customer further agrees that the foregoing obligations shall be deemed to be Customer Responsibilities under this Agreement.

A4. DELIVERY.

JourneyApps shall deliver to Customer an authentication key to download an authorized copy of the container image for the PowerSync Premium Offering. Customer agrees that it shall have responsibility for using authorized copies of the PowerSync Premium Offering only to the extent permitted by this Agreement and any applicable Order Forms. Customer further agrees that the foregoing obligations shall be deemed to be Customer Responsibilities under this Agreement.

A5. ARCHIVAL AND BACKUP COPIES.

Subject to the restrictions set forth in this Agreement, for the duration of the Term, Customer may make back-up copies of the authorized copy of the PowerSync Premium Offering as reasonably required for archival and disaster recovery purposes, provided that Customer may only possess a single back-up copy at any given time.

APPENDIX B: PowerSync Cloud Terms

(Only applicable if such deployment is indicated in an applicable Order Form)

The following provisions apply when Customer has purchased access to PowerSync Cloud. In the event of any conflict between this Appendix B and the main body of this Agreement, this Appendix B shall control.

B1. UNAUTHORIZED USAGE ISSUES.

With respect to any Customer to whom this Appendix B applies, the definition of “Unauthorized Usage Issue” shall, in addition to the definition set forth in Section 1.g of this Agreement, also include any: (i) use of the Services by Customer or Users that disrupts or is reasonably likely to disrupt the availability of the Services to other users; and (ii) access to the Services by any unauthorized third party through use of any Customer Facilities.

B2. RESTRICTIONS.

In addition to the restrictions set forth in Section 2.a of this Agreement, Customer shall not itself, nor shall it permit any other party (including Users) to take any action that imposes an unreasonable or disproportionately heavy load on the PowerSync Premium Offering or related infrastructure or that negatively affects the ability of others to access or use the PowerSync Premium Offering.

B3. DATA SUB-PROCESSING AND TRANSFER.

Customer authorizes JourneyApps to use one or more internationally-recognized and reputable cloud storage and processing providers, including Amazon Web Services, Inc. (each a “Sub-Processor”) to store and process Customer Data on its behalf for the sole purpose of providing the Hosted Services to Customer. If Customer is subject to the California Consumer Privacy Act, the European Union’s General Data Protection Regulation (GDPR) (EU) 2016/679 or another applicable data privacy law which requires Customer and JourneyApps to enter into separate data processing terms, Customer must request such data processing terms from JourneyApps in writing. Customer agrees that JourneyApps shall have no liability and Customer shall indemnify, defend and hold JourneyApps harmless against any Claim to the extent arising from Customer’s failure to make such request.

APPENDIX C: Service Level Agreement

C1. SUPPORT. 

C1.1. Support Service Levels. JourneyApps will use commercially reasonable efforts to ensure that Support is provided to Customer as part of the Services in accordance with the Service Levels defined in the table below. The Service Level applicable to Customer will be indicated on the relevant Order Form or otherwise indicated by JourneyApps to Customer.

For purposes of this Appendix C: (i) “Business Hours” means the eight (8) hour period between 9 a.m. and 5 p.m. Central Time, Monday through Friday; (ii) “Business Day” means Monday through Friday and excluding United States federal, national and banking holidays; and (iii) “Support Case” means an inquiry or incident reported by Customer in accordance with the process set forth in C1.2.

C1.2. Email-Based Support Case Management. Customers must report Support Cases by electronic mail to [email protected], or through other approved methods communicated by JourneyApps to Customer from time to time. Customer’s Developer Users are required to carefully document the support issue or incident and answer all of JourneyApps’ questions so JourneyApps can efficiently serve the Customer’s Developer User(s). JourneyApps, in its sole discretion, has the right to approve or reject whether a Support Case is a valid request for support.

C1.3. Assigned Customer Success Manager. Customer will be provided with access to assigned JourneyApps staff for advice on questions relating to Customer’s use of PowerSync and the Services.

C1.4. Severity Levels. Each Support Case reported to JourneyApps by Customer will be assigned a Severity Level by JourneyApps, in its sole discretion. Severity Levels are defined as follows:

C1.5. Security Report. JourneyApps will maintain a security report in connection with PowerSync and the Services, describing security measures in use in PowerSync (“Security Report”). Subject to mutually agreed-upon usage terms at the time of written request by the Customer, JourneyApps may, in its reasonable discretion, provide Customer with the then-current Security Report for PowerSync and the Services. During the term of the Agreement, JourneyApps will maintain such security measures identified in the then current Security Report or, if JourneyApps determines that more effective measures should be implemented, apply such replacement security measures.

C2. POWERSYNC CLOUD.

(Only applicable if PowerSync Cloud deployment is indicated in an applicable Order Form)

C2.1. Availability & Unavailability. The PowerSync Cloud shall deemed to be “Unavailable” if Customer’s reasonably up-to-date hardware, software and operating systems are functioning properly, but Customer Users cannot achieve access to the PowerSync Cloud. Unavailability shall not be deemed to occur as a result of JourneyApps scheduled maintenance activities; acts of omission by Customer, failure of Customer hardware or software, vicious attacks such as hacks, denial of service attacks and malicious introduction of viruses and disabling devices, or events beyond JourneyApps’ reasonable control, including Unavailability due to third party service provider and data center issues, network connectivity and/or device hardware failure.

C2.2. Availability Service Levels. JourneyApps will use commercially reasonable efforts to ensure the Availability of the PowerSync Cloud to Customer as part of the Services in accordance with the Service Levels defined in the table below. The Service Level applicable to Customer will be indicated on the relevant Order Form or otherwise indicated by JourneyApps to Customer.

C2.3. Credits. Credit to Customer’s account shall be Customer’s sole and exclusive remedy for Unavailability in respect of the PowerSync Cloud. Credits shall be calculated as the daily equivalent of the subscription Fee in the applicable Order Form, applied for each 24-hour period of Unavailability and any portion of such a 24-hour period. Credits shall be suspended if Customer is in payment default. Credits shall not be provided to Customer in the event that Customer experiences Unavailability resulting from (i) scheduled maintenance, (ii) Customer’s misuse of the Services or the performance or failure of Customer’s equipment, facilities or applications, (iii) Customer’s (or its Users’) violation of an Order Form or the Acceptable Use Policy or (iv) circumstances beyond JourneyApps’ reasonable control, including, without limitation, acts of any governmental body, war, insurrection, terrorism, sabotage, embargo, fire, flood, earthquake or other acts of God, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of an application.

C2.4. Support Service Levels. With respect to customers who have purchased access to PowerSync Cloud, the following Support Service Levels will apply, in addition to the Support Service Levels in Section C1.1 of this Appendix C. The Service Level applicable to Customer will be indicated on the relevant Order Form or otherwise indicated in writing by JourneyApps to Customer.

C2.5. Security Testing. Customer may perform security testing with respect to PowerSync Cloud, but only with JourneyApps’ prior written consent, not to be unreasonably withheld.

C2.6. Logical Segregation of Customer Data. Customer Data residing in PowerSync Cloud (if any) will be logically separated from the Data of other customers of JourneyApps.

C2.7. Chronic Outages. If JourneyApps determines in its reasonable discretion that Customer is experiencing chronic outages, then JourneyApps may, in its discretion and at its expense, investigate the nature of the recurring problem. Within ten (10) Business Days of the conclusion of JourneyApps’ investigation, JourneyApps and Customer technical representatives will discuss the results of the investigation. If JourneyApps, in its reasonable discretion, determines that Customer’s equipment, network or infrastructure requires upgrades or additions to prevent chronic outages, then Customer shall not be eligible for future credits if Customer does not repair, upgrade or otherwise make required changes.

C3. LIMITED WARRANTY.

C3.1. JourneyApps warrants that the Premium PowerSync Features and Support, as applicable, will conform substantially in accordance to the Service Levels set forth in this Appendix C. The foregoing warranty is only for the benefit of Customer, and will only apply if (i) the Premium PowerSync Features have been used at all times in accordance with the terms of the Agreement, the Acceptable Use Policy and other Policies for use provided by JourneyApps; and (ii) no modification, alteration or addition has been made to PowerSync by persons other than JourneyApps or JourneyApps’ authorized representatives.
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C3.2. JourneyApps does not warrant the results obtained through use of the Services. Additionally, JourneyApps is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system of Customer, a User or any third party, nor is JourneyApps responsible for problems that occur as a result of the use of the Services in conjunction with software of third parties or with hardware that is incompatible with the operating systems, computer hardware, software frameworks, user devices, or web browsers (if applicable) with which the Services are intended to be used.
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C3.3. As JourneyApps’ entire liability and Customer’s exclusive remedy for the breach of the foregoing warranty, JourneyApps shall, at its sole option, use reasonable efforts to repair or replace the nonconforming elements of the Premium PowerSync Features. If neither of the foregoing options is commercially practical, JourneyApps will terminate the Agreement and provide a pro-rata refund to Customer for periods following the date of termination.
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C3.4. In addition to the Support information and terms included in this Service Level Agreement, JourneyApps may provide Customer and Developer Users with additional guidance and materials in order to ensure the optimal functioning of PowerSync and the Services. Where a conflict exists between the support levels specified in this SLA and any additional guidance and materials provided to Customer and its Developer Users, the terms of this SLA shall prevail.